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EVERtn 

SPEECH  OF  MR. 
EVERETT,  OFMASSA. 
CHUSETTS 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


Mr  EVERKTT,  OF  MASSACHUSETTS, 

IN    THE    riOUSE    OF    REPRESENTATIVES, 

On  the  14//i  and  2lst  of  February,   1831, 

ON    IHE   KXECtlTION   OF  THE    LAWS    AND   TREAIIES 
ZN  FAVOR  OF  THIS  INDIAN'  THIBSS. 


[On  Monday,  Yxh  February,  1831,  MrE.  Etewett  prrsented  to  tlu^  House  of  RepresenU' 
fives  the  petition  of  sundry  citizens  of  Massachusetts,  praying  that  the  Indian  Tribes  may  be 
protected  in  the  rights  secured  to  them  by  the  laws  of  ArUnited  States,  and  the  treaties 
subsisting'  between  the  United  States  and  the  said  tribes.  In  presenting  tliis  memorial,  Mr 
Everett  observed,  that  he  had  long  felt  it  to  be  the  duty  of  the  House  to  consider  the  all- 
important  subject  of  this  memorial.  He  should  himself,  by  way  of  resolution,  have  called 
the  attention  of  the  House  to  the  subject,  had  no  other  member  expressed  an  intention  of 
doing  so,  if  it  had  been  possible,  under  the  rules  of  the  House,  to  move  a  resolution.  But 
it  was  known  to  the  Chair  that,  for  several  weeks  p.ist,  there  had  not  been  a  moment  when 
it  was  in  order  to  move  a  resolution.*  A  petition  from  a  very  respectable  community  in 
the  State  which  he  had  the  honor,  in  part,  to  represent,  had  been  placed  in  his  hands.  By 
the  rules  of  the  House,  a  petition  cannot  be  debated  on  the  day  on  which  it  is  presented, 
l)ut  must  lie  on  the  table  one  day.  As  petitions  are  received  only  one  day  of  the  week — on 
Mondays — Mr  E.  observed  that  the  memorial  which  he  presented  must,  under  these  rules, 
lie  on  the  table  till  that  day,  and  then  come  up  as  the  unfinished  business  of  petitions.  He 
begged  leave,  therefore,  in  presenting  this  petition,  to  give  notice,  that,  when  it  should 
come  up,  on  Monday  next,  he  should  feel  it  his  duty  to  ask  the  attention  of  the  House  to  the 
very  important  question  of  protecting  the  Indian  Tribes,  in  the  possessions  and  rights  secured 
to  them  by  treaty  and  laws  of  the  United  States. 

On  Monday,  the  14th  of  February,  the  subject,  according  to  this  notice,  came  up.  A  mo- 
tion was  submitted  by  Mr  Everett,  that  the  petition  should  be  referred  to  the  Committee 
on  Indian  Affairs,  with  instructions  to  report  a  bill  making  further  provision  for  executing  the 
laws,  relating  to  the  intercourse  of  citizens  of  the  United  States  with  the  Indian  Tribes  ;  and 
also  for  the  faithful  observance  of  the  treaties  between  the  United  States  and  the  said  tribes. 

This  motion  was  supported  by  Mr  Everett,  in  a  speech  delivered  on  the  14th  and  2l8t 
of  February,  in  substance  as  Ibllows:] 

Mr  Speaker  :  In  presenting  this  subject  last  week  to  the  House,  I  observed,  that  it  was 
witli  regret  that  I  found  myself  obliged  to  bring  it  forward  in  a  manner,  strictly  parliameHt- 
ary  indeed,  but  somewhat  unusual.  I  should  have  preferred  to  submit  this  great  subject  to 
the  consideration  of  the  House  by  i he  more  usuul  course  of  a  resolution.  I  have  had  are- 
solution  prepared  for  that  purpose,  and  l\iMg  in  my  desk  for  several  weeks  ;  but  the  Chair 
knows  that  there  has  not  been  a  moment,  for  several  weeks,  when  a  resolution  could  be  of- 
fered but  by  the  unanimous  consent  of  tlie  House.  Such  consent  I  could  not  ask  on  such  a 
subject.  1  should  have  been  better  pleased  to  meet  the  subject  on  a  report  from  the  In- 
dian Committee,  to  whom,  in  connexion  with  very  numerous  memorials  from  various  parts  of 
the  country, wltli  the  President's  Message,  and  with  the  petitions  of  the  Creek  and  Cherokee 
Indians,  it  has  been  referred..  No  report,  however,  lias  proceeded  from  that  committee,  and 
no  intimation  lias  been  given  that  any  is  to  be  expected. 

In  this  state  of  things,  urged  by  my  sense  of  duty,  admonished  by  several  expressions  of 
public  sentiment  committed  to  my  charge  by  the  people  I  represent,  and  looking  upon  the 
subject  as  one  of  great,  of  paramount — aye,  sir,  of  most  painful  importance — a  subject  em- 
inently requiring  the  interposition  of  this  House, — I  have  felt  myself  ponstrained  (in  the  for- 

•  The  bournrthe  «1ay  aiaigned  to  resolutions  beingf  {ire-occupieil  with  the  discuision^f  another  •ubjeot, 

1848S15 


bearaftcfi  of  othew  much  better  qualified  to  take  this  step)  to  make  this  effort  to  bring  it 
under  the  consideration  of  the  representatives  of  the  People. 

I  should  think,  sir,  that  a  positive  decision  of  this  ^estion  by  Congress  would  be  highly 
desirable  to  the  friends  of  the  Administration.  They  cannot,  I  should  think,  wish  to  leave 
with  tlie  iGxecntive  the  responsibility  of  sitting  stdl  and  witnessing  the  violation  of  a  very 
large  nurriier  of  treaties  and  compacts,  and  of  the  clearest  provisions  of  law.  No  man  surely 
can  pfttciHl  that  such  a  policy  can  be  within  the  competence  of  the  Executive  ;  and  if,  for 
reasons  of  necessity,  or  reasons  of  State,  or  any  otlier  reasons,  the  treaties  with  the  Indians 
are  to  be  annulled,  and  the  laws  touching  our  intercourse  with  them  converted  into  a  dead 
letter,  it  surely  cannot  require  an  argument  to  prove,  that  Congresss  is  the  only  power  by 
which  this  can  be  done  with  any  show  of  rightful  authority. 

I  cannot  disguise  my  impression,  tliat  it  is  the  greatest  question  M'hich  ever  came  before 
Congress,  short  of  the  question  of  peace  and  war.  It  concerns  not  an  individual,  but  entire 
communities  of  men,  whose  fate  is  wholly  in  our  hands.and  concerns  them  not  to  the  extent 
of  affecting  their  interests,  more  or  less  favorably,  within  narrow  limits.  As  I  regard  it,  it 
is  a  question  of  inflicting  the  pains  of  banishment  from  tlieir  native  land  on  seventy  or  eighty 
thousand  human  beings,  the  greater  part  of  whom  are  fixed  and  attached  to  their  homes  in 
the  same  way  that  we  are.  We  have  lately  seen  this  House  in  attendance,  week  after  week, 
at  the  bar  of  the  other  House,  while  engaged  in  solemn  trial  of  one  of  our  ow||function- 
aries,  for  having  issued  an  or^r  to  deprive  a  citizen  of  his  liberty  for  twent) -four  Hours.  It 
is  a  most  extraordinary  and  ast<(||shing  fact,  that  the  policy  of  the  United  States  toward  the 
Indians — a  policy  coeval  witii  the  Hevolution,  and  sanctioned  in  tiie  most  solemn  manner  on 
innumerable  occasions — is  undergoing  a  radical  change,  whicli,  I  am  persuaded,  will  prove 
as  destructive  to  the  welfare  and  lives  of  its  subjects  as  it  will  to  their  rights  ;  and  that  nei- 
ther this  House,  nor  the  other  House,  has  ever,  even  by  resolution,  passed  directly  upon  the 
question. 

But  it  is  not  merely  a  question  of  tlie  welfare  of  (hese  dependent  beings,  nor  yet  of  the 
honor  and  faith  of  the  country  whicli  are  pledged  to  them — it  is  a  question  of  the  Union  it- 
self. AVhat  is  the  Union  ?  Not  a  mere  abstraction  ;  not  a  word  ;  not  a  form  of  Government  ,- 
it  is  the  undisputed  paramount  operation,  tlu'ough  all  the  States,  of  those  functions  with 
which  tlic  Government  is  clothed  by  the  Constitution.  When  that  operation  is  resisted,  the 
Union  is  in  fact  dissolved.  I  will  not  now  dwell  on  this  idea  ;  but  the  recent  transactions  in 
Georgia  have  been  already  hailed  in  tiie  neighboring  British  provinces  as  the  commencement 
of  tliat  convulsion  of  these  U.iited  States,  to  which  tlie  friends  of  liberty  throughout  the 
world  look  forward  with  apprehension,  as  a  fatal  blow  to  tlieir  cause. 

If  any  further  apology  were  needed  for  bringing  this  matter  before  the  House,  it  might 
be  the  fact  that  it  has  been  frequeritly  referred  to  us.  It  has  formed  a  prominent  topic  in 
the  two  annual  communications  of  the  Chief  Magistrate.  Numerous  memorials  on  both  sides 
of  the  question  have  presented  it  to  us;  reports  in  both  Houses  of  Congress  have  discussed  it  ; 
but  owing  to  some  strange  fatality  it  has  never  been  plainly  and  decidedly  met. 

The  Secretary  of  War  tells  us  that  a  new  era  has  within  a  few  years  arisen  in  relation  to 
our  Indian  affairs.  He  does  not  indicate  precisely  what  marks  tlie  new  era  ;  but  in  one  re- 
spect there  has  unquestionably  arisen  a  new  era  in  this  department,  that  of  substituting  Ex- 
ecutive decision  for  Congressional  enactment.  Formerly,  the  Executive  only  carried  into 
effect  our  laws  and  treaties  made  by  the  treaty-making  branch  of  the  Government. 
Now  the  President,  1st,  permits  the  States  to  annul  the  treaties,  and  to  proceed  on  their  de- 
clared want  of  validity  ;  and,  2d,  annals  the  laws  himself,  and  permits  his  Secretary  to  come 
down  to  Congress,  with  an  argument  to  prove  that  a  law  substantially  coeval  with  the  Go- 
vernment is  unconstitutional.  1  am  willing  to  receive  the  Secretary's  argument  for  what  it  is 
worth  ;  but  really,  sir,  I  have  studied  the  Constitution  unsuccessfully,  if  the  mere  opinion 
of  a  Secretary,  with  or  without  an  argument,  renders  a  law  unconstitutional,  and  makes  it 
cease  to  be  obligatory.  But  lo  this  I  shall  return,  repeating  only  now,  that  the  assumption 
of  these  two  principles  in  our  Indian  affairs  does,  indeed,  constitute  a  new  era. 

Sir,  I  know  the  delicacy  of  this  subject.  1  approach  it  with  reluctance  and  pain,  under  the 
most  imperious  sense  of  duty.  I  would  gladly  have  put  it  by,  could  I  have  justified  mjself 
in  so  doing.  I  know,  by  past  experience,  the  odium  I  am  to  incur.  I  know  that,  humble 
as  I  am,  the  denunciations  of  hundreds  of  presses  throughout  the  country  await  me.  I  have 
seen  within  a  week,  in  a  paper  published  at  this  place,  and  which  has  been  made  the  chan- 
nel of  the  most  confidential  communications  between  the  President  and  tlie  People  ;  I  have 
seen  the  course  of  the  minority  of  this  House  who  voted  on  the  Indian  bill  last  year — a  mi- 
nority comprising  some  of  the  most  respectable  friends  of  the  President,  and  amounting  to 
very  nearly  one-half  of  the  House — ascribed  to  vile  faction. 

'--^-  But,  disagreeable  as  the  consequence  may  be,  to  one  who  loves  strife  as  little  as  I,  I  cannot 
keep  silence,  when  1  hear  the  laws  of  the  land  declared  unconstitutional,  by  those  executive 
•  fficers  who  have  no  other  duty  in  reference  to  the  laws,  but  to  enforce  them  ;  wlien  T  see 
treaties  violated  by  States  wiio  are  parties  to  tiiein  ;  treaties  s:inctioned  by  all  tiie  forms  of 
the  Constitution,  and  ratified  by  the  Senators  representing  the  very  States  foremost  in  the 
violation.     1  cannot  V:eep  silence  when  I  see  the  Constitution  invadf^d  ;  the   honor  of  the 


country  tarnished  ;  the  Union  impaired.  If  my  whole  course  durinjj  the  six  years  that  I 
have  been  honored  with  a  seat  on  this  floor,  will  not  protect  mc  in  the  judijment  of  otiiers 
from  the  imputation  of  vile  and  factious  motives  ;  I  shall  iiave  at  least  tiie  censciousness 
in  my  own  bosom,  that  a  sense  of  public  duty,  and  that  alone,  has  impelled  me  to  the  course 
I  have  taken. 

Sir,  the  Secretary  says  a  new  era  has  arisen  in  our  Indian  affairs.  This  is  true.  Up  to 
the  year  1828,  the  course  of  proceeding  in  our  Indian  affairs  is  well  known,  at  least  in  re- 
ference to  all  tlie  tribes,  wiiose  rights  are  now  in  controvers) .  The  United  States  had  nego- 
tiated treaties  with  all  the  Southwestern  tribes.  Our  relations  with  them  and  the  boundary 
between  them  and  us  were  regulated  by  treaty  <  and  by  the  Intercourse  law  framed  in 
pursuance  of  the  same  policy.  A  limited  and  qualified  sovereignty,  sufficient  to  enable  them 
to  contract  these  treaty  obligations, was  conceded  to  the  tribes.  No  State  had  pretended  to 
extend  her  laws  over  either  of  these  ti-ibes  till  the  year  1828.  To  show  the  various  views 
entertained  of  this  subject,  I  will  cite  several  authorities,  which  will  abundantly  sustain  me 
in  this  position.  The  distinguished  individuals  whom  I  quote,  and  the  present  chief  magis- 
trate at  the  head  of  them,  took  views  somewhat  different  from  each  other,  but  none  of 
them,  [  believe,  mtimated,  that  the  separate  States  possess  the  right  now  claimed. 

In  1821,  the  Creek  Path  Indians  being  dissatisfied  with  the  conduct  of  their  brethren  of 
the  upper  towns,  applied  to  General  Jackson,  tlien  Major  General  of  the  Southern  division, 
requesting  him  to  use  his  influence  with  the  General  Government  to  procure  for  the  said 
Creek  Path  Indians  an  inalienable  reservation  of  a  part  of  their  lands,  on  consideration  of 
selling  their  proportionate  sliare  of  tiie  common  lands  of  the  Nation. 

General  Jackson  was  in  favor  of  this  project,  and  wrote  to.  Mr.  Calhoun,  then  Secretary 
of  War,  as  follows  : 

"I  do  believe,  in  a  political  point  of  view,  as  well  as  in  justice  to  tliese  people,  their  prayer 
ought  to  be  noticed.  It  is  inviting  Congress  to  take  up  the  subject,  and  exercise  its  power, 
under  ike  Hopewell  treaty,  of  regulating  all  the  Indian  concerns  as  it  pleases.  This  is  a  pre- 
cedent much  wanted,  that  tlie  absurdity  in  politics  may  cease  of  an  independent  sovereign 
nation,  holding  treaties  with  people  living  within  its  territorial  limits,  acknowledging  its 
sovereignty  and  laws,  and  who,  although  not  citizens,  cannot  be  viewed  as  aliens,  but  as 
real  subjects  of  the  United  States."  Here  the  right  of  legislating  for  the  Indians  is  claimed, 
not  for  the  States,  but  for  t!ie  United  Stales  ;  and  this  under  the  treaty  of  Hopewell,  a  treaty 
negotiated  before  the  adoption  of  the  Federal  Gunstitution,  and  containing  the  amplest 
guaranties  of  the  rights  of  the  Cherokees. 

In  treating  with  the  Cherokee  Indians  in  1823,  Messrs.  Campbell  and  Meriwether,  citi- 
zens of  Georgia,  animated  by  a  strong  zeal  for  the  acquisition  of  Indian  lands,  use  this  lan- 
guage :  "  The  sovereignty  of  the  country,  wliich  you  occupy,  is  in  the  United  States  alonej 
no  Stale  or  foreign  power  can  enter  into  a  compact  with  you.  These  privileges  have 
passed  away,  and  your  intercourse  is  restricted  exclusively  to  the  United  States." 

In  the  year  1824,  March  10th,  the  Cherokees  are  spoken  of,  in  the  following  manner,  in 
a  letter  addressed  by  the  Senators  and  Representatives  of  Georgia,  to  the  Secretary  of  War  : 
If  tlie  Cherokees  are  "  to  be  viewed  as  other  Indians,  as  persons  suffered  to  reside  with- 
in the  territorial  limits  of  tlie  United  States  ;  and  subject  to  every  restraint,  which  the  policy 
and  power  of  the  General  Government  require  to  be  imposed  on  them,  for  the  interest  of  the 
Union,  the  interest  of  the  particular  States  and  their  own  preservation,  it  is  necessary  that 
these  misguided  men  should  be  taught  by  the  General  Government,  that  there  is  no  alterna- 
tive between  their  removal  beyond  the  limits  of  the  State  of  Georgia  and  their  extinction." 

In  1824  Judge  White,  now  the  distinguished  Senator  from  Tennessee,  gave  an  opinion,  in 
which  he  expressed  himself  as  follows  : 

**  Under  the  parental  care  of  the  Federal  Government,  the  Cherokees  have  been  in  a 
good  degree  reclaimed  from  their  savage  state.  Under  their  patronage,  they  have  become 
enlightened  ;  they  have  acquired  a  taste  for  property  of  their  own,  from  the  use  of  which 
they  can  exclude  all  others  ;  they  have  acquired  the  property  itself.  There  must  be  laws 
tOj  protect  it,  as  well  as  to  protect  those  who  own  it.  By  what  community  ought  these 
laws  to  be  enacted  ?  Laws  there  have  always  been,  and  laws  there  must  continue  to  be, 
emanating  from  some  powers  capable  of  enacting  them.  Where  is  that  power  ?  It  must 
be  in  Congress,  or  in  tlie  Cherokees.  Congress  has  never  exercised  it,  the  Cherokees  al- 
ways have.     I  have  never  heard  that  their  power  ivas  doubted." 

Governor  Troup,  in  1825  , March  25th,  issued  a  Proclamation,  from  which  the  following  ig 
an  extract  : 

"  Whereas  it  is  provided  in  said  treaty,  that  the  United  States  shall  protect  the  Indians 
against  the  encroachments,  hostilities,  and  impositions,  of  the  whites,  so  that  they  suffer  no 
interruption,  molestation,  or  injury,  in  their  persons,  goods,  effects,  tlieir  dwellings,  or  the 
lands  they  occupy,  until  their  removal  shall  have  been  accomplished,  according  to  the  terms 
of  the  treaty  : 

"  I  have  therefore  thought  proper  to  issue  this  my  proclamation,  warning  all  persons, 
citizens  of  Georgia,  or  others,  against  trespassing  or  intruding  upon  lands  occupied  by  the 
Indians,  within  the  limits  of  this  State,  either  for  the  purpose  of  settlement  or  otherwise,  as 


every  such  act  will  be  in  direct  Tiolation  of  tlie  provisions  of  tlie  treaty  aforesaid,  and  will 
expose  tlie  aj^gressors'to  tiie  most  certain  and  summary  punishment,  by  the  authorities  of 
the  State  and  the  United  States. 

"All  good  citizens,  therefore,  pursuing  the  dictates  of  good  faith,  will  unite  in  enforcing 
the  obligations  of  the  treaty,  as  the  supreme  law"  &c. 

Governor  Troup,  being  exceedingly  desirous  to  hasten  the  survey  of  the  lands,  acquired 
by  the  treaty  of  the  Indian  Springs,  asked  permission  to  survey  them,  of  General  M'liv- 
tosh,  the  Chief  of  the  emigrating  party,  as  a  necessary  preliminary. 

In  1826,  a  Senator  from  Mississippi,  now  deceased,  (Mr.  Heed,)  disclaimed  any  right,  on 
the  part  of  tlie  State,  to  extend  her  jurisdiction  over  the  Indians.  "  At  tiie  last  session, 
said  he,  of  the  Legislature  of  iMississippi,  a  proposition  was  made  to  extend  the  civil  power 
of  their  courts  to  their  own  citizens,  who  had  contracted  debts  within  the  State,  and  had 
fled  to  this  savage  sanctuary.  The  matter  was  debated  many  days,  and  it  was  at  last  decid- 
ed that  there  existed  no  power  in  the  State,  to  extend  its  laws  in  the  manner  sought  by  the 
proposition." 

These  authorities,  I  think,  will  abundantly  prove  that  the  claim  of  tiie  Soutliern  States  to 
exercise  jurisdictiiMi  over  tribes,  with  wliom  there  are  existing  treaties,  forms  a  new  era. 
Whether  it  be  that  to  which  the  Seeretary  of  War  alludes,  I  pretend  not  to  decide. 

While  the  Secretary  of  War  announces  this  new  era,  the  President  in  liis  Message  at  the 
opening  of  the  Session  informed  us,  that  "the  benevolent  policy  of  tlie  Government,  stead- 
ily pursued  for  nearly  thirty  years,  in  relation  to  the  removal  of  the  Indians  beyond  the  white 
settlements,  is  approaching  to  a  happy  consummation."  'I'his  statement  appears  to  me  at 
variance  with  that,  wliicli  was  made  in  the  annual  message  of  the  last  year.  In  that  docu- 
ment  we  svere  loJd,  that  "  it  has  long  been  the  policy  of  Guvcrnmenl  \.o\ni\-ui\\icz  Avnon^ 
Indians  the  arts  of  civilization,  in  the  hope  of  gradually  reclaiming  them  from  a  wandering 
state."  This  is  certainly  a  benevolent  policy  :  and  this  is  the  pohcy,  which  has  been  stead- 
ily pursued  for  nearly  thirty  years.  But  last  year,  the  President  added  :  "this  policy  has, 
however,  been  couiiled  with  another,  ivholly  incompatible  with  it.t  success.  Professing  a  de- 
sire to  civilize  and  settle  tliem,  we  have,  at  the  same  time,  lost  no  opportunity  to  purchase 
their  lands,  and  thrust  tliem  furtlier  into  the  wilderness.  By  this  means,  tliey  have  not  only 
been  kept  in  a  wandering  state,  but  have  been  led  to  look  upon  us  as  unjust  and  indiffer- 
ent to  their  fate.  Thus,  though  lavish  in  its  expenditures  on  the  subject.  Government  has 
constantly  defected  its  own  policy." 

Last  year  the  benevolent  policy  of  settling  and  civilizing  them  had  been  thwarted  by 
another,  that  of  removal  to  the  west,  declared  to  be  incompatible  with  its  success.  This 
year  the  removal  to  the  west  is  declared  to  be  the  benevolent  policy,  which  has  been  stead- 
ily pursued.     In  my  judgment,  the  view  taken  in  the  message  of  lust  year  is  the  sounder. 

But  the  policy  of  removal  has,  1  grant,  been  pursued  steadily  for  thirty  years,  but  never 
in  the  same  manner,  as  now.  It  was  never  tliought  of,  that  all  the  treaties  and  laws  of  the 
United  States  protecting  the  Indians  could  be  annulled,  and  the  laws  of  the  States  extend- 
ed over  them  ;  laws  of  such  a  character  that  it  is  admitted,  nay  urged,  that  they  cannot  live 
under  them.  The  policy  of  removal  has  been  pursued  by  treaty,  negotiated  by  persuasion, 
urgency,  if  gentlemen  please,  with  importunity.  But  the  compulsion  of  State  legislation  and 
of  the  withdrawal  of  tlie  protection  of  the  United  States  was  never  before  heard  of.  If  the 
President  means  that  the  policy  of  removal  under  this  compulsion  is  thirty  years  old,  I  do 
not  know  a  fact,  on  which  his  proposition  can  stand  for  a  moment.  However  pursued,  the 
policy  of  removal  had  been  attended  with  limited  success.  Vasttractsof  land  had  indeed  been 
acquired  of  the  southwestern  tribes,  but  chiefly  by  bringing  their  settlements  within  nar- 
rower limits.  Between  the  years  of  1809  and  1819,  about  one-third  of  the  Cherokces  went 
over  to  Arkansas,  and  the  hardships  and  suflferings  encountered  by  them  were  a  chief  cause 
why  their  brethren,  the  residue  of  the  tribe,  resisted  every  inducement  held  out  to  persuade 
thew  also  to  emigrate.  Tlie  Choctaws,  by  the  treaty  of  Doak's  Stand,  acquired  a  large 
tract  of  country  between  the  Ued  Itiver  and  the  Canadian  ;  but  would  not  in  any  consid- 
erable numbers  emigrate  to  it  In  1826,  a  part  of  the  Creeks  were  forced  by  the  convul- 
■ions  in  that  tribe  to  emigrate,  under  the  treaty  of  that  year.  In  1828  the  Choctaws  and 
Chickasaws  sent  a  deputation  to  explore  the  country  west  of  Arkansas,  which  returned  dis- 
satisfied with  its  appearance. 

While  the  policy  of  removal  was  going  on  with  this  limited  success,  that  of  civilization^ 
the  truly  benevolent  pohcy,  was  much  more  prosperous.  The  attempt  to  settle,  to  civilize, 
and  to  christianize  some  of  these  tribes  succeeded  beyond  all  example.  If  the  accounts  of 
their  previous  state  of  barbarism  are  not  exaggerated,  tlie  annals  of  the  world  do  not,  to  my 
knowledge,  pi'csent  another  instance  of  improvement  so  rapid,  within  a  single  generation  ^ 
unless  it  be  that  which  has  been  efTected,  by  a  similar  agency,  in  the  Sandwich  Islands, 
within  the  last  ten  years. 

During  all  the  time  that  these  two  processes  were  going  on,  that  of  removal  (declared 
last  year  by  the  President  to  be  inconsistent  with  civilizing  them)  with  partial  success  ;  and 
that  of  settling  and  improving  their  condition,  on  this  side  of  the  Mississippi,  in  which  the 
success  had  been  rapid  and  signal,  no  attempt  was  made  to  encroac^        -^  Uieir  limited  indc- 


pendence-  The  right  of  the  United  States  to  treat  with  them  was  not  questioned  ;  tiie 
States  never  attempted  to  legislate  over  them  ;  and  the  possessions  and  rights  guarantied  to 
them  by  numerous  treaties  were  considered  by  them  and  by  us,  as  safe  beneath  the  protec- 
tion of  the  National  Faith.  But  at  length, '/under  the  late  administration  of  the  General  Go- 
vernment, tl  e  south-western  States,  takirig-  advantage  of  the  political  weakness  of  that 
administration,  seemed  determined  to  adventure  the  experiment,  how  far  they  could  go,  to 
effect  by  a  new  course  of  State  legislation,  a  revolution  in  the  Indian  policy  of  the  country. 

Georgia  led  the  way.  In  1828  she  passed  a  summary  law  to  take  effect  prospectively, 
extending  her  jurisdiction  civil  and  criminal  over  the  Indian  tribes  within  her  limits.  In  1829 
this  law,  with  more  specific  provisions,  was  re-enacted,  to  take  effect  on  the  first  day  of  June 
1830.  This  example  of  Georgia  was  imitated  by  Alabama  and  Mississippi.  By  these  State 
aws,  the  organization  previously  existing  in  the  Indian  tribes  was  declared  unlawful,  and  was 
annulled.  It  was  made  criminal  to  exercise  any  function  of  Government  under  autliority  de- 
rived from  the  tribes.  The  political  existence  of  these  communities  was  accordingly  dis- 
solved, and  their  members  declared  citizens  or  subjects  of  the  States.  What  a  contrast,  in 
two  or  three  years  !  In  1826,  after  many  days'  debate,  the  Legislature  of  Mississippi  decid- 
ed, that  it  had  no  right  to  pass  a  law  to  pursue  its  own  citizens,  being  fugitive  debtors,  into 
the  Indian  country.  In  1829,  the  same  State  extends  all  its  laws  over  tlie  Choctaws,  abro- 
gates their  Government,  and  denounces  the  punishment  of  imprisonment  on  any  person  who 
should  exercise  any  office  under  the  authority  of  the  tribe. 

Tlie  Indians,  as  was  natural,  looked  to  the  Government  of  the  United  States  for  protec- 
tion. It  was  the  quarter  whence  they  had  a  right  to  expect  it ;  where,  as  I  think,  they 
ought  to  have  found  it.  They  asked  to  be  pi-otected  in  the  rights  and  possessions  gu.irantied 
to  tliem  by  numerous  treaties,  and  demanded  the  execution,  in  their  favor,  of  the  laws  of  the 
United  States  governing  the  intercourse  of  our  citizens  with  the  Indian  Tribts.  \They  came 
first  to  the  President,  deeming,  and  rightly,  that  it  was  his  duty  to  afford  them  this  protec- 
tion. They  knew  him  to  be  tlte  supreme  Executive  Officer  of  the  Government ;  that  as 
such  lie  had  but  one  constitutional  duty  to  perform  toward  the  treaties  and  laws — tlie  duty 
of  executing  them.  The  President  refused  to  afford  the  protection  demanded.  He  in- 
formed tliem,  tliat  he  had  no  power,  in  his  view  of  the  rights  of  the  States,  to  prevent  their 
extending  their  laws  over  the  Indians  ;  and  the  Secretary  of  War,  in  one  of  liis  communica- 
tions to  them,  adds  the  remark,  that  the  President  had  as  little  inclination  as  power  to  do  so. 

When  this  decision  of  the  President  was  taken,  does  not  certainly  appear.  On  the  23d 
day  of  March,  1829,  he  informed  a  Delegation  of  Creek  Indians,  that,  if  they  remained,  tliey 
mast  become  subject  to  the  law  of  Alabama.  On  the  11th  of  April,  the  superintendent  of 
the  Bureau  of  Indian  Affairs,  by  direction  of  the  Secretary  of  War,  stated  to  the  Cherokee 
Delegation,  "  That  the  Secretary  of  War  is  not  now  prepared  to  decide  the  question  in- 
volved in  the  act  of  the  Legislature  of  Georgia,  to  which  you  refer,  in  wiiich  provision  is 
made  for  extending  the  laws  of  Georgia  over  your  People,  after  the  1st  June,  1830.  It  is 
a  question  which  will  doubtless  be  tlie  subject  of  Congressional  inquiry,  and  what  is  proper 
in  regard  to  it  will  no  doubt  be  ordered  by  that  body. 

"  In  regard  to  the  act  of  Georgia,  no  remedy  exists  short  of  one  which  Congress  alone 
can  apply." 

On  the  18th  of  the  same  month,  a  letter  of  the  Secretary  ef  War,  to  the  same  delegation, 
tells  them,  in  the  most  positive  terms,  that  the  Indians  must  submit  to  tiie  State   laws. 

On  the  14th  October,  the  Secretary,  writing  to  Governor  Forsyth,  uses  this  language  : 
"  At  an  early  period,  therefore,  when  this  question  arose,  the  Cherokees  were  given  dis- 
tinctly to  understand  that  it  was  not  within  the  competency  or  power  of  the  Executive  to 
call  in  question  the  rigl;t  of  Georgia  to  a  sseit  her  own  authority  within  her  own  limits, 
and  the  President  has  been  gratified  to  witness  tlie  extent  to  which  a  principle  so  reasonable  in 
itself,  and  so  vitally  important  to  Slate  Sovereignly,  has  received  the  approbation  of  his  fellow- 
citizens.  This  oft  asserted  and  denied  right  being  settled,  on  the  side  of  the  State,  to  the 
extent  that  Executive  interference  could  go,  it  was  expected  and  hoped  that  a  little  longer 
•ontinuance  of  that  forbearance  which  Georgia  has  so  long  indulged,  was  all  tiial  was  wanted 
to  assure  to  her  the  purposes  and  objects  she  had  before  her  :  and  after  a  manner,  too,  to 
which  philanthropy  could  take  no  exception." 

Such  was  the  fate  of  the  question  which  was  to  be  the  subject  of  Congressional  inquiry. 
In  what  way  tliat  popular  sanction  had  been  given,  whicHlfthe  President  appears  to  have 
taken  in  licu  of  any  legislative  decision  of  this  question,  does  not  appear. 

At  the  ensuing  session  of  Congress,  a  memorial  was  presented  to  this  House,  signed  by 
three  thousand  and  eighty-five  individuals  of  the  Cherokee  tribe.  Another  memorial  was 
laid  upon  our  tables  from  the  Creeks.  The  subject  was  also  presented  to  us  in  the  annual 
message  of  the  President,  disclosing  a  state  of  tacts  which  seemed  to  require,  as  well  as  to 
invite,  the  decisive  action  of  Congress.  Finally,  the  public  mind  was  extensively  awaken- 
ed. Very  numerous  memorials,  on  the  subject  of  the  revolution  which  was  going  on  in  our 
Indian  policy,  were  sent  in  to  Congress.  Some  of  these  (and  of  this  character  was  the 
^rat  presented)  approved  the  change  :   by  far  the  greater  part  condemned  it. 

In  this  way  the  question  of  the  right  of  the  State  to  extend  her  laws  over  Indian  tribes. 


in  contravention  of  treaties  and  the  laws  of  the  United  Stales,  was  brought  before  Congress 
in  tlie  fullest  and  amplest  manner.  It  was  not,  however,  directly  iret.  Tlie  President  had, 
in  the  recess  of  Congress,  declared  that  he  could  not  and  would  not  enforce  the  treaties  and 
laws.  The  Secretary  of  War  had  almost  sneered  at  tlie  idea,  that  the  Indians  could  possess 
rights  under  a  treaty  forty  years  old;  as  if  the  validity  of  a  treaty  were  impaired  by  the 
length  of  time  its  provisions  had  been  in  force. '  But  the  treaties  were  still  preserved  in 
our  archives.  Tiie  intercourse  law  founded  upon  them  still  stood  unrepealed  on  the  Statute 
Book  ;  and  it  appears  to  me  that  the  proper  way  in  which  this  question  was  to  be  met, 
would  have  been  a  proposition  to  repeal  the  laws  and  abrogate  the  treaties. 

In  my  judgment  there  was  an  error  in  the  first  step  taken  by  the  President.  He  decided 
a  question  Wl)ich  he  had  no  constitutional  competency  to  decide.  Wiien  the  first  move- 
ment was  made  by  the  States,  he  should  have  interposed  to  maintain  the  treaties  and  enforce 
the  laws,aiid  have  referred  the  subject  to  Congress.  What  other  power  has  the  Executive  over 
a  treaty  or  a  law  but  to  enforce  it  ?  The  principle  assumed  by  the  President  and  by  the  Se- 
cretary is,  that  w  henever  the  Executive  tliinks  a  law  unconstitutional  he  may  forbear  to  ex- 
ecute it.  Now,  how  will  this  operate  on  other  questions  ?  Suppose  Mr.  Adams  had  thought 
the  compact  of  1802  unconstitutional,  (as  it  was  held  to  be  in  tliis  debate  last  winter  bj'  a  Se- 
nator from  Alabama)  could  he  have  refused  to  enforce  it  ;  could  he  have  forborne  to  expend 
an  appropriation  granted  to  carry  it  into  effect  ?  The  President  has  plainly  intimated,  that 
the  Bank  of  the  United  States  is  unconstitutional.  Is  he  thereby  authorized  to  p\it  it  out  of 
the  pale  of  the  law  ?  A  very  respectable  ])ortion  of  the  community  regards  the  tariflas  un- 
constitutional, and  propositions  have  been  made  to  annul  it,  by  the  authority  of  a  State  and 
within  its  limits.  But  who  ever  heard  that  the  President  and  the  Secretary  of  the  Treasury 
might  between  tiiem  declare  it  unconstitutional,  and  as  such  null  and  void?  The  intercourse 
law  was  ^»assed  as  it  stands  in  1802  ;  the  substance  of  it  was  enacted  in  1791,  and  the  Secre- 
tary of  War,  with  the  full  concurrence  of  tlie  President,  lays  his  hand  on  this  law,  which  is 
forty  years  old,  tells  us  it  is  unconstitutional,  and  as  such  not  obligatory. 

Let  us  but  consider  the  extravagance  of  this  doctrine.  The  (;onstitution  gives  to  the 
President  n  veto  on  an  act  of  Congress  in  its  passage,  and  if  he  withholds  his  signature  it  fails 
to  become  a  law.  But  even  without  the  sanction  of  his  name,  without  the  Executive  concur- 
rence which  may  be  witliholden  on  the  very  ground  of  unconstitutionality,  the  act  becomes  a 
law  if  two-thirds  of  Congress  adhere  to  it.  But  of  what  use  is  this  or  any  other  limitation  on 
the  exercise  of  the  President's  veto,  if  he  may  annul  any  law  and  all  the  laws  in  the  statute 
book,  on  the  simple  opinion  that  they  are  unconstitutional  ? 

But  what,  it  may  be  asked,  is  the  President  to  do:  how  is  he  to  proceed  with  an  unconstitu- 
tional law  ?  I  answer  this  question,  by  asking- another,  how  is  he  authorized  to  arrive  at  the 
conclusion,  that  a  law  is  unconstitutional  ?  Is  he  created  by  the  Constitution,  a  functionary 
to  pass  on  the  unconstitutionality  of  laws  ?  I  can  find  no  such  power  given  him  in  the  Con- 
stitution.  •' 

It  is  one  thing  for  a  law  to  be  ascertained  and  declared  unconstitutional,  by  the  competent 
ti'ibunal,  and  another  thing  for  it  to  be  thaught  unconstitutional,  by  any  citizen  or  officer  call- 
ed on  to  obey  or  to  enforce  it. 

The  citizen  is  not  bound  to  obey  an  unconstitutional  law;  for  it  is  no  law.  But  if  he  under- 
takes to  disobey  a  law  because,  in  his  private  judgment,  it  is  unconstitutional,  it  is  at  his  risk 
and  peril ;  and  it  will  not  probably  be  long,  before  some  process  of  law  wdl  teach  him  that 
he  is  not  authorized  finally  to  adjudicate  such  a  question.  An  Executive  officer,  high  or  low, 
is  certainly  not  bound  to  execute  an  unconstitutional  law  ;  but  his  simply  thinking  it  to  be 
unconstitutional  is  a  very  different  affair. 

Suppose  a  collector  should  think  the  tariff  unconstitution.d  ;  could  he  forbear  I o  collect 
the  duty  '  Could  the  Secretary  of  the  Treasury,  holding  the  same  opinion,  remit  the  duty  ? 
Could  the  President  direct  his  Secretary  to  remit  it  ? 

In  the  Government  under  which  we  five,  a  power  is  provided  to  pass  on  the  constitution- 
ality of  laws.  The  President  is  not  that  tribunal.  His  office  is  executive.  The  opinion  he 
holds  of  the  constitutionality  of  a  law,  (except  when  called  to  sign  it  on  its  passage)  he 
holds  not  officially  but  as  any  other  citizen,  at  his  peril ;  and  as  it  is  his  sworn  duty  to 
execute  the  laws,  if  he  refuses  to  execute  a  law,  for  whatever  cause,  he  is  guilty  of  a  high 
breach  of  official  duty,  and  .conunits  an  impeachable  od'ence.  It  is  the  province  of  this 
House  to  hold  him  to  his  duty.   " 

There  is  no  end  to  the  absurd  consequences  which  would  flow  from  an  opposite  principle. 
To  what  would  it  not  lead  ?  If  the  President  may  annul  a  law,  which  he  thinks  unconsti- 
tutional, the  Secretary  may  annul  another  which  he  thinks  unconstitutional  ;  and  so  may  any 
of  his  clerks.  The  clerk  of  your  House  may  refuse  to  carry  a  bill  which  you  pass  to  the  Se- 
nate, if  he  thinks  it  unconstitutional ;  for  in  that  case,  it  is  no  more  a  law,  on  this  principle, 
than  an  old  newspaper.  And  if  gentlemen  contend  that  they  reserve  to  the  President  alone  this 
dispensing  power  of  refusing  to  execute  laws,  which  in  his  private  judgment  are  unconstitu- 
tional, they  merely  give  us,  instead  of  the  anarchy  which  would  arise  from  its  being  possess- 
ed by  all  the  Executive  officers,  a  perfect  Oriental  despotism  produced,  by  imparting  it  to  one. 
We  have  heard  a  good  deal  gald  about  nullification,  and  no  small  opprobrium  attached 


to  the  word.  Has  It  never  oceurred  to  some  gentlemen, willing  enough  io  stigmatize  ihnt 
doctrine,  that  they  themselves  have  lent  their  countenance  to  the  same  doctrine,  not  in  theo- 
ry alone,  but  in  practice  ?  Georgia  orders  a  survey  of  the  Cherokee  lands.  The  law  of 
1802  makes  it  highly  penal  to  survey  lands  belonging  or  secured  to  Indian  tribes  by  treaty. 
It  subjects  those  who  transgress  thelawto  athousand  dollars  fine  and  twelve  months' imprison- 
ment, and  authorizes  the  President  to  call  out  a  military  force  to  execute  the  law.  The  Pre- 
sident tells  all  concerned  that  he  will  not  enforce  tlie  law,  because  he  thinks  it  unconstitu- 
tional. Is  not  that  nullification  ?  The  convention  of  the  Judges  of  Georgia  decide  all  the 
Indian  treaties  to  be  unconstitutional.  Is  not  that  nullification  ?  And  yet,  if  I  mistake  not, 
propositions  have  been  made  in  tlie  quarter  where  this  nullification  is  practised  by  wholesale, 
to  censure  the  doctrine  as  theoretically  advanced  in  a  neighboring  State. 

I  have  remarked  that  tlie  direct  way  to  meet  this  question  would  have  been  to  propose  a 
law  abrogating  the  treaties  and  repealing  the  intercourse  law  of  1892. 

But  a  different  course  was  pursued.  A  bill  was  presented,  ably  drawn  and  carefully 
vorded,  so  as  to  leave  this  question  entirely  aside.  Although  the  bill  was  an  integral  part 
of  the  policy  of  the  Stales,  designed  to  co-operate  with  it,  and  in  fact  built  upon  it  as  upon 
a  foundation,  it  was  so  worded  as  not,  in  terms,  to  afford  it  any  sanction.  We  were  obliged 
to  go  to  the  President's  Message,  and  to  the  reports  of  the  committees  of  the  two  Houses 
of  Congress,  to  ascertain  its  character.  We  did  so  ;  and  wc  discussed  the  policy,  as  it  dis- 
covered itself  in  those  documents. 

But,  harmless  as  the  bill  was  in  its  terms,  it  could  riot  have  passed,  but  for  the  amendment 
moved  by  the  gentleman  from  Pennsylvania,  (Mr.  Ramsat,)  by  which  amendment  it  was 
provided  tliat  "  nottiing  in  this  act  contained  shall  be  construed  as  autiiorizing  or  directing 
the  violation  of  any  treaties  existing  between  the  United  States  and  any  Indian  tribe."  I 
was  perfectly  well  persuaded,  at  the  time,  that  this  proviso  would  be  without  practical  ef- 
fect ;  but  it  saved  the  bill  from  being  lost ;  and  now,  from  one  end  of  the  continent  to  the 
other,  this  proviso  is  lield  up  to  show  tliat  the  Indian  Bill  of  l;\st  Winter  does  not  sanction 
the  compulsory  removal  of  the  Indians  ;  that  the  treaties  are  to  be  held  inviolate  ;  and  that 
the  Indians  are  to  be  protected  in  their  riglits  ;  all  the  while  tliat  it  is  perfectly  notorious, 
as  I  shall  demonstrate  before  I  sit  down,  that  the  Indians  are  not  to  be  protected  ;  that  the 
treaties  are  violated  ,-  and  that  this  proviso  is  a  dead  letter. 

The  bill  passed,  we  all  remember  how,  under  the  severest  coercion  by  the  previous 
question,  that  I  have  ever  known,  applied,  too,  for  the  purpose  of  shutting  out  the  amend- 
ment of  the  gentleman  from  Pennsylvania,  (Mr.  Hemphill,)  the  object  of  which  was  to 
obtain  information,  in  respect  to  the  cliaracter  of  the  country,  to  wliich  the  Indians  were  to 
be  removed.  For  I  beg  it  may  be  recollected,  after  all  we  have  heard  of  the  factious  course 
pursued  by  the  minority^  that  all  we  asked  was  the  adoption  of  tlie  amendment  of  the  gen- 
tleman from  Pennsylvania,  which  proposed  to  send  a  respectable  commission  into  this  region, 
to  see  if  it  be  fit  for  the  habitation  of  the  fellow-beings  whom  we  are  driving  from  their 
homes  ;  and  that  this  was  denied  us. 

Still  the  act  seemed  to  promise  something  to  the  Indians,  for  it  bore  on  its  face,  that  the 
treaties  were  not  to  be  violated.  Tlie  money  which  it  granted  was  granted  conditionally  : 
the  condition  was  contained  in  a  proviso ;  and,  if  that  proviso  were  not  acted  up  to,  no  ap- 
propriation was  made,  and  no  expenditure  was  lawful. 

Just  two,  or  perhaps  three,  days  after  the  passage  of  the  act,  the  Georgia  laws  took  effect 
and  went  into  operation  over  all  the  Indians  included  within  the  nominal  boundaries  of  the 
State. 

And  here  I  reach  a  part  of  the  subject,  on  which  I  dwell  wltii  great  pain,  the  legislation 
of  Georgia  over  the  Cherokees.  It  is  my  duty  to  inquire  into  the  character  of  the  Georgia 
laws,  against  which  our  interference  is  Invoked,  and  our  protection  demanded.  I  speak  of 
the  laws  of  Georgia  Individually,  and  not  of  the  other  States  who  have  extended  their  juris- 
di«tion  over  the  Indians,  because  the  legislation  of  Georgia  is  better  known.  I  do  not 
single  out  her  laws  invidiously.  Neitlier  do  I  pretend  an  acquaintance  with  her  whole  code. 
I  have  not  seen  it.  A  few  laws  only,  that  form  a  part  of  it,  have  come  to  my  knowledge  ; 
but  these  are  sufficient  to  establish  my  proposition,  that  these  Indians  have  great  and  just 
cause  to  look  to  us  for'protection. 

I  will  first  speak  of  the  elfect  of  the  Georgia  legislation  upon  the  Cherokee  government. 
The  Ciierokees,  sir,  have  a  very  respectable  rejiresentative  government ;  respectable  in  its 
character  ;  respectable  in  its  origin,  'i'he  first  sketch  of  it  proceeded  from  the  same  pen, 
that  drafted  our  own  Declaration  of  Independence.  In  1809  Mr.  Jeff"erson  gave  this  People 
the  first  elements  of  a  system  of  Government,  adapted  to  their  condition,  which  I  will  ven- 
ture to  read  to  the  House. 

"  My  Children,  Deputies  of  Ike  Cherok4e  Upper  Towns. 

1  have  maturely  considered  the  speeches  you  have  delivered  me,  and  will  now  give  you 
answers  to  tlie  several  matters  they  contain. 

You  inlorm  me  of  your  anxious  desires  lo  engage  in  the  industrious  pursuits  of  agricul- 
ture and  civilized  life  ;  that  finding  it  impracticable  to  induce  the  nation  at  large  to  join  in 


th'n,  yoii  tvish  ft  line  of  separation  to  be  established  bet«reen  the  Tapper  and  Lower  Towns,! 
80  as  to  include  all  the  waters  of  the  Highwassee  in  your  part ;  and  that  having  thus  con- 
flicted your  society  within  narrower  limits,  you  propose, within  these,  to  begin  the  establish- 
ment of  fixed  laws  and  of  regular  government.  You  say,  that  the  Lower  Towns  are  satis- 
fied with  the  division  you  propose,  and  on  these  several  matters  you  ask  my  advice  and  aid. 

Witli  respect  to  the  line  of  division  between  yourselves  and  the  Lower  Towns,  it  must 
rest  on  the  joint  consent  of  both  parties.  The  one  you  propose  appears  moderate,  reason- 
able and  well  defined  ;  we  are  willing  to  recognize  those  on  each  side  of  tliat  line  as  dis- 
tinct societies,  and  if  our  aid  shall  be  necessary  to  mark  it  more  plainly  than  nature  has 
done,  you  shall  have  it.  I  think  with  you,  that  on  this  reduced  scale,  it  will  be  more  easy 
for  you  to  introduce  the  regular  administration  of  laws. 

In  proceeding  to  the  estabhshment  of  laws,  you  wish  to  adopt  them  from  ours,  and  such 
only  for  the  present  as  suit  your  present  condition  ;  chiefly  indeed,  those  for  the  punish- 
ment of  crimes  and  the  protection  of  property.  But  who  is  to  determine  which  of  our  laws 
suit  your  condition,  and  shall  be  in  force  with  you  ?  All  of  you  being  equally  free,  no  one 
lias  a  right  to  say  what  shall  be  law  for  the  others.  Our  way  is  to  put  these  questions  to  the 
vote,  and  to  consider  tliat  as  law  for  which  the  majority  votes — the  fool  has  as  great  a  right 
to  express  his  opinion  by  vote  as  the  wise,  because  he  is  equally  free,  and  equally  master 
of  himself.  But  as  it  would  be  inconvenient  for  all  your  men  to  meet  in  one  place,  would 
it  not  be  better  for  every  town  to  do  as  we  do — that  is  to  say  :  Choose  by  the  vote  of  the 
majority  of  the  town  and  of  the  country  people  nearer  to  that  than  to  any  other  town,  one, 
two,  three  or  more,  according  to  the  size  of  the  town,  of  those  whom  each  voter  thinks  the 
wisest  and  honest  est  men  of  their  place,  and  let  these  meet  together  and  agree  which  of 
our  laws  suit  them.  But  these  men  know  nothing  of  our  laws.  How  then  can  they  know 
wliich  to  adopt  }  Let  them  associate  in  their  council  our  beloved  man  living  with  them. 
Colonel  MeigB,  and  he  will  tell  them  what  our  law  is  on  any  point  they  desire.  He  will  in- 
form them  also  of  our  methods  of  doing  business  in  our  councils,  so  as  to  preserve  order, 
and  to  obtain  the  vote  of  every  member  fairly.  I'his  council  can  make  a  law  for  giving  to 
every  head  of  a  family  a  sepaiate  parcel  of  land,  which,  when  he  has  built  upon  and  im- 
proved, it  shall  belr>ng  to  him  and  his  descendants  forever,  and  whicli  the  nation  Itself  shall 
have  no  right  to  sell  from  under  his  feet.  They  will  determine  too,  what  punishment  shall 
be  inflicted  for  every  crime.  In  our  States  generally,  we  punish  murder  only  by  death,  and 
all  other  crimes  by  solitary  confinement  in  a  prison. 

But  when  you  shall  have  adopted  laws,  who  are  to  execute  them  ?  Perhaps  it  may  be 
best  to  permit  every  town  and  the  settlers  in  its  neighborhood  attached  to  it,  to  select  some 
of  their  best  men,  by  a  majority  of  its  voters,  to  be  judges  in  all  differences,  and  to  exe- 
cute the  law  according  to  their  own  judgment.  Your  council  of  representatives  will  decide 
on  this,  or  such  other  mode  as  may  best  suit  you,  I  suggest  these  things,  my  children,  for 
the  consideration  of  the  Upper  Towns  of  )  our  nation,  to  be  decided  on  as  they  think  best, 
and  I  sincerely  wish  you  may  succeed  in  your  laudable  endeavors  to  save  the  remains  of 
your  nation,  by  adopting  industrious  occupations  and  a  government  of  regular  laws.  In 
this  you  may  rely  on  the  counsel  and  assistance  of  the  Government  of  the  United  States. 
Deliver  these  words  to  your  people  in  my  name,  and  assure  them  of  my  friendship. 

January  9,  1809.  THOMAS  JEFFERSON. 

In  1817  this  government  received  the  sanction  of  the  United  States,  in  a  treaty  negotiated 
in  that  year  by  the  present  Chief  Magistrate,  as  a  Commissioner  Plenipotentiary  for  that  pur- 
pose. In  the  preamble  to  this  treaty  the  incidents  of  1809  are  alluded  to  ;  the  ])urpo8e  of 
the  Cherokees  who  remained  on  this  side  of  the  Mississippi,  to  begin  the  establishment  of 
fixed  laws  and  a  regular  Government  is  recognized,  together  with  the  promise  made  by  Mr. 
Jefferson  of  the  patronage,  aid,  and  good  neighborhood  of  the  United  States,  alike  to 
those  who  emigrated  and  those  who  staid  behind.  This  treaty  was  unanimously  ratified  by 
l;he  Senate  of  the  United  States.  Thus  originated  and  thus  confirmed,  the  Cherokee  Go- 
vernment subsequently  assumed  a  highly  regular  form,  and  an  improved  organization.  Its 
practical  operation  was  excellent,  and  it  did  the  United  States  no  harm,  because  it  was 
assumed  as  the  principle  of  our  Government,  that  no  change  was  to  be  wrought  by  the  im- 
proved institutions  of  ilie  Cherekees  on  their  relations  with  us. 

Of  the  orderly  and  becoming  manner  in  which  the  Cherokee  Government  was  conducted, 
we  have  the  satisfactory  testimony  of  Messrs.  Campbell  and  Meriwether,  who  went  among 
them  to  negotiate  a  treaty  in  1823.  I  read  an  extract  from  a  letter  addressed  by  them  to 
the  Council  of  the  Cherokee  Nation,  dated  Newtown,  16lh  October,  1823  : 

"  Friends  and  Brothers  :  We  are  happy  that  a  short  time  has  been  consumed  in  the  cor- 
respondence betsveen  you  and  the, State  commissioners. 

"  This  has  afforded  us  an  opportunity  of  becoming  partially  acquainted  with  several  men»- 
bers  of  this  Council.  For  the  whole  body  wc  entertain  a  high  respect,  and  we  trust,  that, 
with  some  of  you  we  have  contracted  individual  friendships.  In  saying  this,  we  do  no  vio- 
lence to  our  feelings,  neither  do  we  lower  the  elevated  character  of  the  United  States.  Peo- 
ple who  have  never  seen  you,  know  but  little  of  your  progress  in  the  arts  of  civilized  life, 
and  of  the  regular  and  becoming  manne;-  in  wiiich  your  affairs  are  conducted. 


"  Your  improvement  reflects  the  greatest  credit  upon  yourselves,  and  upon  the  Govern' 
uient  by  which  you  have  been  improved  and  fostered." 

Such  was  and  is  the  Cherokee  Government  which  Georgia  has  avowed  her  purpose,  by 
one  sweeping-  act  of  legislation,  to  put  down.  That  State  has  enacted  a  law  making  it  high- 
ly penal  to  exercise  any  of  the  functions  of  this  Government.  Chiefs,  headmen,  members 
of  the  Council,  Judicial  and  Executive  offiqprs,  are  all  subject  to  four  years'  imprisonment  in 
the  penitentiary  if  tliey  presume  to  exercise  any  of  the  functions  of  Government  within  their 
own  tribe,  and  under  tiiat  Constitution  which  we  originally  and  repeatedly  exliorted  them  to 
frame. 

In  this  way  the  greatest  confusion  is  at  once  introduced  into  the  concerns  of  this  unhappy- 
people.  Tiieir  own  Government  is  outlaw  ed,  and  it  is  made  higldy  penal  to  execute  its  func- 
tions. Tlie  pr()tection  of  the  United  States  is  witluh-aw.i,  because  Georgia  has  extended 
her  laws  over  the  Indians  ^  and  Georgia  herself,  althougli  asserting,  and  in  many  respects 
exercising  her  juiisdiction,  has  not  yet  organized  it  in  such  a  manner  as  to  keep  the  peace 
among  Ihis  afRicted  race.  Tiieir  system  of  Government,  instead  of  being  regarded  as  almost 
all  Governments,  however  defective,  are  entitled  to  be,  as  an  institution  necessary  for  the 
well  being  of  the  people,  wliicli  ought  to  be  treated  with  tenderness,  and  not  be  destroyed 
till  a  substitute  is  provided,  has  been  abated  and  broken  down  as  a  nuisance. 

But  among  the  laws  of  Georgia  extended  '>ver  the  Cherokees,  there  are  some  which, 
from  their  nature,  must  take  an  immediate  effect;  and  among  these  1  cannot  but  notice  several 
whose  operation  must  be  as  injurious  to  the  welfare  of  the  Indians  as  the  entire  system  is  de- 
structive of  their  rights.  At  the  late  session  of  the  Georgia  Legislature  a  law  was  passed 
"  that  no  Cherokee  Indian  should  be  bound  by  any  contract,  hereafter  to  be  entered  into, 
with  a  white  person  or  persons  ;  nor  shall  any  Indian  be  liable  to  be  fined  in  any  of  the 
Courts  of  law  or  equity  in  tiiis  State  on  such  a  contract."  I  am  aware  that  laws  of  this  kind 
have  been  found  necessary  among  the  dwindling  remnants  of  tribes  in  some  of  the  States, 
whose  members  are  so  degenerate  that  they  are  unable  to  preserve,  against  the  arts  of  cor- 
rupt white  men,  the  little  property  they  possess.  But  among  the  Cherokees  are  men  of  in- 
telligence and  shrewdness,  who  have  acquired  and  possess  large  accumulations  of  property, 
houses,  shops,  plantations,  stock,  mills,  ferries,  and  other  valuable  possessions  ;  men  who 
understand  property  and  its  uses  as  well  as  we  do,  and  who  need  all  the  laws  which  property 
requires  for  its  judicious  management.  Notwithstanding  this,  Georgia,  at  one  blow,  makes 
all  these  people  incapable  of  contracting.  Men  as  competent  as  ourselves  to  all  business 
transactions,  are  reduced  by  a  sweeping  law  to  a  state  of  pupilage. 

[Mr.  Foster,  of  Georgia  explained,  that  this  law  was  passed  for  the  benefit  of  the  Indians, 
to  prevent  their  being  imposed  ow.  That  it  did  not  release  white  men  from  their  engage- 
ments to  Indians,  but  Indians  from  their  engagements  to  white  men.] 

I  understood  and  stated  the  law  precisely  as  the  gentleman  from  Georgia  states  it. 
1  know  this  character  may  be  claimed  for  the  law.  But  how  does  it  seek  the  benefit  of 
the  Indians  ?  By  reducing  them  to  a  state  of  minority.  Sir,  it  is  for  the  benefit  and 
protection  of  children,  that  they  are  unable  to  contract  ;  but  still  they  are  children, 
and  the  law  holds  them  to  their  infancy.  And  what  sort  of  a  boon  is  it  to  men  of  large  pro- 
perty and  active  dealings  to  pass  a  law  releasing  them  from  their  contracts  ?  Does  it  not  di- 
rectly follow,  that,  if  they  cannot  be  held  to  their  contracts,  no  one  will  contract  with  them  ; 
and  that  the  apparent  hmilation  of  the  law  which  exempts  the  Indian  while  it  binds  the  white 
man,  is  illusory  ;  for  who  will  contract  with  a  person  who  is  by  law  exonerated  from  compli- 
ance with  his  engagements  ?  Such  a  law  can  have  no  other  effect  among  Indians  than  among 
white  men  ;  and  what  would  be  the  effect  on  the  business  of  a  community  of  white  men,  to 
enact  a  law  releasing  them  from  all  engagements  into  which  they  might  enter  ? 

By  the  law  of  Georgia  of  1829,  the  testimony  of  an  Indian  was  declared  inadmissible  in 
any  case,  in  which  a  white  man  is  a  party.  Tliis  law  was  generally  condemned  during  the 
discussions  of  last  year.  Tlie  objections  taken  to  it  were  declared  by  some  of  the  advo- 
cates of  the  course  pursued  by  Georgia  to  be  unreasonable,  captious,  and  groundless,  and 
were  set  down  to  the  score  of  morbid  sensibihty  and  political  philanthropy.  Now,  what 
has  been  the  practical  operation  of  this  feature  in  the  Georgia  law?  Governor  Gilmer  thus 
describes  it  in  his  Message  at  the  opening  of  the  late  session  of  the  Georgia  Legislature: 

'•It  is  also  due  to  our  Indian  People,  that  that  provision  in  the  law  of  1829,  should  be 
repealed,  which  prevents  Indians  and  the  descendants  of  Indians  from  being  competent 
witnesses  in  the  Courts  of  the  State,  in  cases  where  a  white  man  is  a  party.  The  pre- 
sent law  exposes  them  to  great  oppression,  while  its  repeal  would  most  probably  injure  no 
one.  Attempts  have  been  made  to  strip  them  of  their  property  by  forged  contracts,  because 
of  the  impossibility  of  defending  their  rights,  by  the  testimony  of  those  who  alone  can  know 
them.  And  although  the  moral  feehng  of  our  frontier  community  has  been  too  correct  to 
permit  such  infamous  proceedings  to  effect  their  ends  ;  yet  the  character  of  our  legisla- 
tion for  justice  requires,  that  the  rights  of  those  People  should  not  be  exposed  to  such 
danger." 

Such  is  the  character,  which  Governor  Gilmer  gives  of  this  law,  and  of  its  operation.    I 
have  heard  some  details  of  the  oppressions  to  which  he  alludes.     I  have  no  reason  to  doubt 
their  truth  j  but  I  will  not  repeat  them  to  the  House,  without  vouchers  to  support  them.  I 
2 


10 

will  only  add,  that  this  law  rejecting  the  testimony  of  Indians,  remains  unrepealed;  and  tliat 
their  rights  and  property  are  still  dependent  on  "  the  moral  feeling  of  the  frontier  commu- 
nity" of  Georgia.  That  frontier  community  must  liave  better  feelings  and  principles,  than 
usually  actuate  a  part  of  every  community,  if,  in  the  continued  operation  of  this  law,  the  In- 
dians are  not  subjected  to  tlie  most  grievous  oppressions. 

I  will  mention  anotlier  law  of  the  new  code.  Its  design  may  be  imperfectly  apprehended 
by  me:  and  if  1  err  in  tlie  motive  for  which  I  suppose  it  was  enacted,  I  hope  I  shall  be  ex- 
cused, on  the  ground  of  the  great  difficulty  of  picking  up  here  and  there — one  law,  in  this 
newspaper,  and  another  in  that — the  information,  which,  as  it  seems  to  me,  ought  to  have 
been  spread  before  us,  in  ample  detail,  to  enlighten  and  guide  our  legislation.  The  law,  to 
which  I  allude,  subjects  all  white  persons,  wlio  shall  reside  within  the  Cherokee  country, 
without  a  permit  from  the  Governor  of  Georgia,  or  such  agent  as  the  Governor  shall  author- 
ize, and  who  shall  not  have  taken  an  oath  of  allegiance  as  a  citizen  of  Georgia,  to  four  years 
imprisonment  at  hard  labor  in  the  penitentiary.  Now,  I  should  be  glnd  to  be  informed, 
where,  on  her  own  principles,  Georgia  gets  the  right  to  exact  such  an  oath  from  all  persons 
resident  en  her  soil,  granting  the  Cherokee  country  to  be  her  soil.  The  Constitution  of  the 
United  States  gives  Georgia  no  sucl)  right.  It  is  there  provided,  that  "  the  citizens  of  each 
State  shall  be  entitled  to  all  tlie  ])rlvllegesand  immunities  of  citizens  of  the  several  States." 
Grant  that  the  country  is  subject  to  her  laws:  what  right  lias  she  to  tender  to  the  citizens  of 
another  State,  an  oath  of  allegiance  as  citizens  of  Georgia  ?  If  I  go  to  Savannah  or  Mllledge- 
ville,  and  demean  myself  peaceably,  i  wish  to  know,  what  right,  under  the  Constitution, 
Georgia  possesses  to  shut  me  up  to  hard  labor  In  her  penitentiary,  If  1  will  not  take  an  oath, 
as  a  citizen  of  that  State.*  I  am  told  that  this  law  is  intended  to  strike  at  the  missionaries. 
I  do  not  assert  the  fact,  nor  ascribe  motives  to  men  or  bodies  of  men.  If  tliis  is  its  design, 
as  it  will  unquestionably  be  its  efiect,  I  trust  it  will  be  borne  in  mind,  that  the  missionaries 
were  introduced  into  the  Cherokee  natlon_under  very  respectable  auspices.  It  was  during 
the  administration  of  Mr.  Madison,  and  with  the  express  consent  and  approbation  of  Mr.  Craw- 
ford, while  this  gentleman  held  the  office  of  Secretary  of  War.  His  letter  to  Mr.  Kingsbury, 
to  this  effect,  is  among  the  documents,  formerly  communicated  to  the  House.  The  missiona- 
ries were  then  promised  the  protection,  countenance,  and  co-operation  of  the  Government  j 
and  the  annual  appropriation  for  civilizing  the  Indians  was  recommended  to  be  made^  and  has 
been  applied  in  furtherance  of  their  operations.  They  are,  to  say  the  very  least,  an  inno- 
cent and  a  harmless  class  of  men.  They  expressly  disclaim  having  interfered  in  the  politi- 
cal relations  of  the  Cherokees  with  the  United  States.  They  have  unquestionably  been  the 
instruments  of  great  good.  If  this  region,  and  its  ill-fated  inhabltints,  were  swallowed  up  to- 
morrow by  an  earthquake,  and  sunk  from  existence,  the  missionaries  would  have  left  monu- 
ments of  their  benevolent  labors,  which  will  last  as  long  as  the  history  or  the  memory  of  this 
generation  lasts;  yes,  sir,  as  long  as  the  Earth  and  the  Heavens  shall  last.+  The  law  I  have 
quoted  is  supposed  to  aim  at  their  exclusion. 

Thus  far  it  is  possible,  that  Georgia  (and  I  again  beg  leave  to  say,  that  I  name  that 
State  not  invidiously)  may  be  thought  by  some  persons  not  to  have  gone  beyond  some  ab- 
stract right  of  civil  jurisdiction,  capable  of  being  reconciled  with  a  "  possessory  right,"  in 
which  the  Indians  were  promised  by  the  Executive  to  be  protected.  But  Georgia  has  not 
stopped  here.  In  the  course  of  the  year  1829,  it  was  found,  that  this  region  possessed,  and 
probably  in  abundance,  veins  of  gold.  As  soon  as  this  discovery  was  made,  intruders  from 
every  quarter,  and  from  all  the  States  in  the  neighborhood  flocked  into  the  gold  region  and 
overran  the  land.  The  Indians  demanded  their  removal  by  the  Agent.  The  Agent  refer- 
red the  case  to  the  Secretary  of  War,  and  the  Secretary  of  War  gave  the  requisite  orders 
for  their  removal.  This  took  place  before  the  first  day  of  June,  1830.  That  day  the  laws 
of  Georgia  took  effect.  And  very  shortly  afterwards  I  read  a  Proclamation  in  the  j^upers, 
proceeding  from  a  gentleman  whom  1  most  highly  respect,  the  present  Governor  of  Georgia, 
and  which  appeared  to  be  of  a  character  so  strange  and  unexpected,  that  I  could  scarcely 
credit  my  senses  as  I  read  it.  Let  me  read  a  portion  of  this  Prociaraiktiou  to  the  House, 
which  bears  date  3d  June,  1830. 

"  Whereas  it  has  been  discovered,  that  the  lands  in  the  territory,  now  occupied  by  the 
Cherokee  Indians,  within  the  limits  of  this  State,  abound  with  valuable  minerals,  and  espe- 
cially gold;  and  whereas  the  State  of  Georgia  lius  the  fee  simple  title  to  said  lands,  and  the 
entire  and  exclusive  property  of  the  gold  and  silver  therein;  and  whereas  numerous  persons, 
citizens  of  this  and  other  States,  together  with,  the  Indian  occupants  of  said  Territory,  taking 
advantage  of  the  Law  of  this  State,  by  which  its  jurisdiction  over  said  territory  was  not  as- 
sumed until  the  first  day  of  June  last  past,  have  been  engaged  in  digging  for  gold  in  said 
land,  and  taking  therefrom  great  amounts  in  value,  thereby  appropriating  riches  to  them- 
selves, which,  of  right,  equally  belonged  to  every  other  citizen  of  the  State,  and  in  viola- 

•  These  are  Uie  termioflhe  oath,  "I,  A.  B.  ito  sol -mnly  swear,  or  affirm  as  the  ease  may  be,  that  I  will  sup- 
port and  deleiid  the  Cuiistituiion  of  Georgia,  and  uprightly  demean  myseit'as  a  citizen  thereof." 

t  Much  iutorinatiou  relatire  to  the  cliaracteraud  opei-atious  of  the  Missionaries  among  the  Indian  tribes,  may 
be  found  m  the  memorial  to  Congress  of  the  I'rudential  Committee  of  the  Board  of  Conimissioiier*  aX  foreigo 
KXiMious,  pre«ented  to  the  House  of  Kepre6euuii\  c«  by  Mr.  £.  on  the  14th  February. 


11 

tlon  of  the  rights  of  the  State,  and  to  the  injury  of  Its  public  resources,"  &c.  And  then  the 
Governor  warns  "all  persons,  whether  citizens  of  this  or  other  States,  or  Indian  occupants, 
to  cease  all  further  trespass  on  the  lands  of  this  State,  and  especially  from  taking  any  gold 
or  silver  from  the  lands  included  within  the  Territory  occupied  hy  the  Cherokee  Indians," 
&c.     All  further  trespass  on  their  own  lands,  and  all  further  digging  for  their  own  gold! 

It  is  true  the  Governor,  in  his  Message  at  the  opening  of  the  late  Session  of  the  Legisla- 
ture in  Georgia,  attempts  to  justify  this  strange  pretension.  "  The  right  thus  asserted," 
says  he,  '•  was  supposed  to  be  establislied,  by  the  customary  law  of  all  the  European  na- 
tions, who  made  discoveries  or  formed  (Colonies  on  the  Continent;  by  the  fee  simple  or  al- 
lodial title,  which  belongs  to  the  Stale,  to  all  lands  witliin  its  limits,  not  already  granted 
away?  and  the  absence  of  all  right  in  the  fndians,  they  never  having  appropriated  the  mine- 
ral riches  of  tlie  earth  to  their  own  use."  Neither  had  Georgia  appropriated  these  mines 
by  occupation.  As  soon  as  the  Cherokees  knew  their  existence,  they  proceeded  to  take 
possession  of,  and  to  work  them,  lill  tliey  were  driven  away,  by  the  laws  of  Georgia,  and  the 
troops  of  the  United  States.  What  force  there  can  be  in  the  English  Common  law  of  fee 
simple  and  allodia!  title,  to  control  the  stipulations  of  a  treaty  between  the  United  States  and 
a  tribe  of  Indians,  I  confess  my  inabilitj'  to  imagine.  The  argument  from  the  customary  law 
oft!  .,■  European  conquisiadores  proves  a  great  deal  too  much.  It  would  justify  the  Gover- 
nor, not  only  in  seizing  the  gold  mines,  but  in  reducing  the  Indians  themselves  to  bondage, 
and  to  labor  in  tiie  mines.  The  Portuguese  did  this  and  so  did  the  Spaniards.  The  slave 
trade  was  projected  b)'  the  benevolent  Las  Casus,  to  relieve  the  Indians  from  digging  their 
own  gold  for  their  conquerors. 

When  this  subject  was  under  the  consideration  of  the  House  at  the  last  session,  I  certainly 
did  not  entertain  very  favorable  auguries  of  tlie  treatment,  which  the  Cherokees  were  likely 
to  receive  ;  but  it  never  entered  into  my  head,  that  tiiey  were  to  be  denied  a  right  to  their 
own  mines.  On  the  contrary,  I  assumed  it  as  a  matter  of  comse,  that  they  were  the  law- 
ful and  admitted  owners  of  this  mineral  wealth.  Having,  in  the  course  of  mv  remarks  on 
this  subject,  had  occasion  to  allude  to  the  intruders  into  the  gold  region,  before  I  could 
finish  tlie  sentence,  in  which  I  made  that  allusion,  a  gentleman  who  voted  for  the  Indian  bill 
interrupted  me,  with  the  prompt  assurance,  that  these  mtruders  were  ordered  to  be  remored 
by  the  Executive.  I  was  gratified  at  the  information,  althougli  it  was  tlien  no  more  (as  I 
thought)  than  a  matter  of  course.  My  next  information  on  tlie  subject  was  derived  from 
Governor  Gdmer's  proclamation,  claiming  for  Georgia  tiie  absolute  property  of  the  gold 
mines,  and  warning  tlie  Indians  to  desist  from  digging  them. 

Extraordinary  as  this  is,  I  fear  somelliing  more  extraordinary  remains  to  be  told.  By  the 
intercourse  law,  the  Executive  is  authorized  to  employ  the  military  force  of  the  United 
States  to  remove  intruders  from  lands  belonging  or  secured  to  Indians  by  treaty.  This  power 
has  several  times  been  exercised.  But  the  Inchans  also  possess  by  treatv,  the  right  of  pro- 
ceeding summarily  to  redress  themselves.  Tliey  possess  the  right  by  the  treaty  of  Holston 
negotiated  in  1791.  The  Secretary  of  War  in  alluding  to  the  right  which  the  Indians  thus 
possess,  under  the  treaty  of  Holston,  speaks  of  it  disparagingly  as  a  treaty  forty  years  old. 
But  it  will  be  recollected,  that  with  all  the  other  treaties  it  was  confirmed  by  an  express  ar- 
ticle in  that  of  1817.  What  are  the  terms  in  which  this  right  is  secured  to  tlie  Indians  by  the 
treaty  of  Holston  ? 

"  If  any  citizen  of  the  United  States,  or  other  person,  not  being  an  Indian,  shall  settle  on 
any  of  the  Cherokee  Lands,  such  person  shall  forfeit  the  protection  of  the  United  States, 
and  the  Cherokees  may  punish  liim  or  not  as  they  please." — Treaty  of  Hulstein,  Art.  Sth. 

In  pursuance  of  this  right,  guarantied  by  treaty,  but  flowing  from  that  law  of  Nkture,  which 
is  before  all  treaty,  the  Indians  have  exercised  this  power  of  protecting  themselves  fi-om  in- 
truders: nor  was  it,  that  I  know  of,  ever  questioned  by  any  Administration  tdl  this. 

It  has  received  the  sanction  of  the  present  Chief  .Magistrate  in  the  amplest  terms. 

In  a  letter  to  Path  Killer  and  other  Cherokee  Chiefs,  dated  Head  Quarters,  Nashville,  18th 
Jan.    1821,  Gen.  Jackson  thus  expressed  himself; 

"  Friends  and  brothers  :  I  have  never  told  a  red  brother  a  lie  nor  deceived  him.  The  in- 
truders, if  they  attempt  to  return,  will  be  sent  off.  But  your  light-horse  should  not  let  them 
settle  down  on  your  land.  You  ought  to  drive  the  stock  away  from  your  lands,  and  deliver 
the  intruders  to  the  Agent  ;  but  it  you  cannot  keep  intruders  from  your  land,  report  it  to  the 
agent,  and  on  his  notice,  I  will  drive  them  from  your  land. 
I  am  your  friend  and  brother, 

ANDREW  JACKSON." 

In  pursuance  of  the  authority  conferred  on  the  tribe,  by  the  treaty  of  Holston,  an  autho- 
rity to  the  exercise  of  which  they  had  been  exhorted  a  few  years  ago,  by  Gen.  Jackson,  and 
of  which  the  validity  was,  I  believe,  never  questioned  before,  the  Cherokees,  in  the  course 
of  the  last  year,  in  consequence  of  the  number  and  disorderly  conduct  of  the  intruders  upon 
their  lands,  proceeded  to  remove  a  ]}ortion  of  them.  This  step,  whicli  they  were  perfectly 
warranted  to  take,  occasioned  a  hostile  incursion  from  Georgia,  in  the  result  of  which  one 
Indian  was  killed,  and  some  others  wounded  and  carried   prisoners  into  Georgia.     This  oc- 


currence  occasioned  the  detacliment  of  a  party  of  United  States'  troops  into  the  Cherokee 
countrj',  who  accordingly  came,  rather,  as  it  would  seem,  to  protect  the  intruders  from  the 
Cherokees,  than  the  Cherokees  from  the  intruders.  Being  there,  orders  were  given  to  the 
troops  to  remove  intruders  from  tlie  gold  region,  and  these  orders  were  at  first  complied  with, 
but  with  partial  success  ;  for  as  soon  as  a  band  of  gold  diggers  were  driven  from  one  spot, 
they  settled  in  another,  like  iiungry  vultures  frightened  from  their  prey.  They  are  said  to 
have  been  a  colluvies  of  all  classes  and  characters  ;  a  lawless  and  desperate  gang. 

And  here  ensued  a  scene  of  a  character  bordering  on  comedy,  if  any  thing  can  be  consi- 
dered burlesque  in  so  grave  a  matter.  I  give  it  as  it  is  related  in  the  memorial  of  the  Chero- 
kee Indians,  on  our  tables  : — 

"  In  another  case,  in  the  name  and  authority  of  George  R.  Gilmer,  Governor  of  Georgia, 
a  bill  was  filed  in  chancery,  in  the  Superior  Court  of  Hall  Cv^unty,  in  July  last,  against  certain 
sundry  Cherokees,  praying  for  an  injunction  to  stop  them  from  digging  and  searciiing  for 
gold  within  the  limits  of  their  own  nation  j  and  the  bill  being  sworn  to  before  the  same  A. 
S.  Clayton,  he  awarded  an  injunction  against  the  parties  named  in  the  bill  as  defendants, 
commanding  them,  fortliwiih,  to  desist  from  working  on  those  mines,  under  the  penalty  of 
20,000  dollars,  at  a  time  and  place  where  there  were  unmolested  sereral  thousand  intruders 
from  Georgia  and  otlier  Slates,  engaged  in  robbing  the  Nation  of  gold,  for  which  the  owners 
were  ordered  not  to  work  by  tlie  said  writ.  Under  the  authority  of  this  injunction,  the  she- 
riff of  Hall  county,  with  an  armed  force,  invaded  the  Nation,  consisting  of  a  Colonel,  a  Cap- 
tain, and  thirty  or  forty  militia  of  the  State  of  Georgia,  who  arrested  a  number  of  Cherokees 
engaged  in  digging  for  gold,  who  were  at  first  rescued  by  the  troops  of  the  United  States  sta- 
tioned near  the  place,  and  the  slierlff  and  his  party  themselves  made  prisoners,  and  conduct- 
ed fifteen  miles  to  the  military  camp,  when  a  council  of  examination  was  held,  and  the  exhi- 
bition of  their  respective  authorities  was  made,  which  resulted  in  the  release  of  the  sheriff  and 
his  party,  and  a  written  order  by  the  commanding  officer  of  the  United  States'  troops,  direct- 
ing the  Cherokees  to  submit  to  tlie  authority  of  Georgia,  and  that  no  further  protection  could 
be  extended  to  the  Cherokees  at  the  gold  mines,  as  he  could  no  longer  interfere  with  the 
laws  of  Georgia,  but  would  afford  aid  in  carrying  them  into  execution.  On  the  return  of  the 
sheriff  and  his  party,  they  passed  by  the  Cherokees  who  were  still  engaged  in  digging  for 
gold,  and  ordered  tliem  to  desist,  under  tlie  penalty  of  being  committed  to  jail,  and  proceed- 
edjto  destroy  their  tools  and  machinery  for  gleaning  gold,  and,  after  committing  some  further 
aggression,  they  returned.  Shortly  afterwards,  the  sheriff,  with  a  guard  of  four  men,  and  a 
process  from  the  State  of  Georgia,  arrested  three  Cherokees  for  disobeying  the  injunction, 
while  peaceably  engaged  in  their  labors,  and  conducted  them  to  Wadkinsville,  a  distance  of 
seventy-five  miles,  before  the  same  A.  S.  Clayton,  who  then  and  tiiere  sentenced  them  to  pay 
a  fine  of  ninety-three  dollars,  cost,  and  stand  committed  to  prison  until  paid,  and  also  com- 
pelled them  to  give  their  bond  in  the  sum  of  one  thousand  dollars,  for  their  personal  appear- 
ance before  his  next  Court,  to  answer  the  charges  of  violating  the  writ  of  .injunction  afore- 
said. In  custody  they  were  retained  five  days,  paid  the  cost,  gave  the  required  bond,  and 
did  appear  accordingly,  as  bound  by  Judge  Clayton,  who  dismissed  them  on  the  ground  that 
the  Governor  of  Georgia  could  not  become  a  prosecutor  in  the  case.  For  the  unwarranta- 
ble outrage  committed  on  their  liberty  and  persons,  no  apology  was  made,  and  the  cost  they 
had  paid  was  not  refunded." 

I  confess  when  I  first  read  the  account  of  this  incident  in  the  papers  last  Summer,  I  suppos- 
ed it  was  the  wild  freak  of  some  inconsiderate  subaltern.  I  did  not  imagine  that  it  could  have 
taken  place  by  order  from  the  Executive  of  the  United  States.  The  affair  is  but  partially 
explained  in  any  document  I  have  seen  ;  but  thus  much  is  certain,  that  orders  were  sent  by 
the  Secretary  ot  War  to  the  Cherokee  Agent  and  to  the  officer  commanding  the  troops  of 
the  United  States,  to  forbid  the  Cherokees  as  well  as  the  intruders  from  digging  the  gold 
mines.  On  the  26th  June,  1830,  an  order  was  issued  from  the  War  Department  at  Washing- 
ton to  the  officer  commanding  the  United  States  troops  in  the  Cherokee  country,  "  Direct- 
ing him,  until  further  orders,  to  prevent  all  persons  from  working  the  mines,  or  searching 
for  or  carrying  away  gold  or  silver,  or  eitiier  metal  from  the  Cherokee  Nation." 

This  order  was  communicated  by  the  Agent  to  Mr  Ross,  the  principal  Chief  of  the  Chero- 
kees, in  a  letter,  dated  lOth  July,  1830,  in  which  he  says: 

"  I  have  also  enclosed  you  a  copy  of  a  letter  from  the  War  Department,  on  the  subject  of 
the  Gold  Mines,  by  which  you  will  see  that  all  persons  are  ordered  to  be  kept  from  digging 
for  gold  until  further  order  ;  and  have  to  request  that  you  will,  in  such  way  as  you  think  best, 
make  it  known  to  the  Indians,  and  also  that  you  will  advise  them  to  desist  for  the  present,  as 
I  am  very  desirous  that  no  difficulties  should  take  place  between  the  United  States'  troops 
and  them  on  the  subject." 

And  now.  Sir,  1  think  I  may  safely  appeal  to  many  gentlemen  of  the  House  who  voted  for 
the  Indian  bill  last  winter,  whether  it  entered  into  their  imaginations  that  under  that  bill,  and 
with  its  proviso,  the  Indians  should  be  prohibited  by  the  armed  force  of  the  United  States 
from  digging  gold  within  the  limits  secured  to  them  by  numerous  treaties.  There  were 
gentlemen,  I  know,  who  voted  for  the  bill,  condemning  the  policy  of  which  it  is  a  part,  but 
deeming  it  necessary  to  save  the  Indians.     Others  thought  sometliing  ought  to  ba  done  in 


18 

consequence  of  the  compact  of  1802.  Othors  were  influenced  by  some  refined  notion  of  a 
jurisdiction  co-extensive  with  the  charter.  Did  any  of  them  mean  or  intend,  that  within  less 
than  a  twelvemonth — within  less  than  three  months — after  adopting  a  proviso  that  the  trea- 
ties should  not  be  violated,  the  Cherokees  should  be  driven,  by  the  bayonet  of  our  United 
States'  troops,  from  gold  mines  within  the  boundaries  secured  to  them  by  treaty  and  law  ? 

The  winding  up  of  this  affair  was  in  keeping  with  its  commencement  and  progress.  The 
object  of  marching  the  tro»ps  into  the  Cherokee  country,  according  to  Major  General  Ma- 
comb, *'  was  to  guard  against  the  difficulties  which  it  was  apprehended  would  grow  out  of 
the  conflicting  operations  of  the  Cherokees  and  the  lawless  intruders,  upon  the  mineral  dis- 
trict within  the  State  of  Georgia.  Having  fulfilled  the  instructions  of  the  Government,  the 
troops  were  directed  to  return  for  the  winter  to  their  respective  quarters." 

On  the  29th  of  October  last,  Gov.  Gilmer  wrote  to  the  Secretary  of  War,  requesting  the 
removal  of  the  troops,  on  the  ground  that  the  State  of  Georgia  could  enforce  her  own  laws. 
On  the  10th  of  November,  the  Secretary  answers  him,  that  previously  to  the  receipt  of  his 
letter,  (two  days  before)  the  troops  had  been  ordered  out  of  the  Cherokee  nation,  because 
the  purposes  for  which  they  had  been  sent  into  it  were,  in  a  great  measure,  accomplished. 

This  object,  according  to  the  General  Commanding  in  Chief,  was  to  prevent  collision  be- 
tween the  Cherokees  and  lawless  intruders  into  the  gold  district.  It  was  answered,  by  re- 
moving both  ! 

And  here  it  is  obvious  to  ask,  how,  on  the  ground  assumed  by  Georgia  and  sanctioned  by 
the  Executive  of  the  United  States,  the  President  could  feel  himself  authorised  to  employ 
the  armed  force  of  the  United  States  in  removing  gold  diggers,  lawless  or  lawful,  Indians  or 
white  men,  from  the  gold  mines  of  Georgia,  if  Georgia's  tliey  must  be  ?  It  is  not  his  duty 
to  enforce  the  laws  of  Georgia,  nor  to  protect  her  property.  SWe  maintains  that  she  is  able 
to  do  it  herself.  Nay,  the  still  broader  question  presents  itself — what  T\ght,  on  the  ground 
atsumedby  Georgia  and  the  Executive,  have  we  to  go  upon  the  soil  of  Georgia  to  remove  or 
bribe  away  a  part  of  her  subjects  or  citizens  ?  What  right  to  keep  an  agent  there,  or  to 
pay  them  an  annuity  ?  Am,  I  answered,  it  is  done  in  pursuance  of  treaties?  The  treaties 
are  declared  unconstitutional  and  void.  Sir,  it  happens  now  to  accord  with  the  interest  of 
Georgia  to  permit  it,  but  surely  she  will  not  bend  her  principles  to  her  interest  .' 

It  has  been  urged  against  the  Colonization  Society,  on  very  high  authority,  that  it  is  un- 
constitutional for  the  United  States  to  go  into  a  State  to  remove  a  part  of  its  colored  popula- 
tion. In  a  very  able  report  made  to  the  Senate,  I  think  at  the  first  session  of  the  twentieth 
Congress,  I  find  the  following  argument: 

"  Uefore  they  leave  this  part  of  the  subject,  the  Committee  will  observe,  that  the  framers 
of  the  Constitution  most  wisely  abstained  from  bestowing  upon  the  Government  thereby 
created  any  powers  whatever  over  the  colored  population,  as  such,  whether  this  population 
was  bond  or  free. 

"  If  the  United  States  possess  the  right  to  intrude  into  any  State,  for  the  purpose  of  with- 
drawing from  thence  its  free  colored  population,  they  undoubtedly  must  exert  practically 
the  power  of  previously  deciding  what  persons  are  embraced  within  this  description.  They 
must  have  the  power  of  determining  finally  not  only  who  are  colored,  but  who  are  free  per- 
sons. This  committee  believe,  however,  that  any  attempt,  by  the  United  States,  to  exer- 
cise such  a  power  would  not  only  be  a  direct  violation  of  the  Constitution,  but  must  be  pro- 
ductive of  tfie  worst  effects." 

Now,  sir,  it  is  not  necessary  to  consider  how  far  this  argument  applies  to  the  operations  of 
the  Colonization  Society.  But  on  the  principle  that  the  Indian  country  is  a  part  of  the  soil, 
and  its  occupants  a  portion  of  the  People  of  the  State,  I  confess  I  do  not  see  how  gentle- 
men who  stand  on  the  ground  of  State  rights  and  strict  construction  of  the  Constitution,  can 
move  an  inch  in  this  matter.  What,  sir,  constitutional  for  the  General  Government  to  go 
into  the  counties  of  Georgia,  into  Hall  and  Habersham,  to  get  the  People  of  those  counties 
together — People  subject  to  the  laws  of  Georgia — make  a  compact  with  them  to  move  away 
in  a  body — take  millions  of  money  out  of  the  Treasury  of  the  United  States,  to  effect  this 
object — to  enable  the  President  to  go  upon  the  soil  of  Georgia  and  buy  off  her  People  ! 
In  what  part  of  the  Constitution,  on  the  principles  which  gentlemen  set  up,  is  there  a  word 
to  warrant  such  a  policy,  or  to  justify  an  appropriation  of  money  to  carry  it  into  operation  ? 

I  know  it  has  been  answered,  that  it  is  constitutional  to  fulfil  a  compact.  I  must  own  that 
this  mode  of  getting  at  a  grant  of  power  is,  for  statesmen  wlio  advocate  a  strict  Constitution, 
liberal  enough.  Accordmg  to  this  principle,the  General  Government  may  enter  into  a  compact 
to  do  an  unconstitutional  thing,  and  it  thereby  becomes  constitutional.  On  the  ground  up- 
on wkich  this  new  Indian  policy  rests,  the  compact  of  1802  was  itself  unconstitutional,  and 
•was  so  argued  to  be,  in  the  Senate  last  winter.  If  tlie  soil  and  jurisdiction  of  this  territory 
were  already  Georgia's,  the  United  States  had  no  right  to  interfere  with  it,  not  even  to  extin- 
guish the  Indian  title  on  peaceable  and  reasonable  terms.  Unless  the  principles^of  the  Con- 
stitution vary  with  the  complexion  of  those  who  are  the  subjects  of  its  provisions,  the 
United  States  have  just  as  little  right  to  enter  into  compact  to  extinguish  the  title  of  the 
red  men  of  one  county  of  Georgia,  as  that  of  the  white  men  of  another  county.  The  gen- 
tlemen are  actually  obliged  to  come  to  us  for  principles,  on  which  they  can  remove  the  In- 


14 

di&ns.  Unless  the  treaties  are  taVul,  tlie  United  States  have  no  power  to  act  in  this  mattw. 
Gentlemen  deny  the  vahdity  of  the  treaties  in  order  to  get  at  the  soil ;  and  then  c«me  back 
to  the  treaty-making  power,  to  get  ihe  Indians  removed  from  it. 

The  conduct  whicli  Georgia  has  pursued,  with  respect  to  the  gold,  forcibly  reminds  me 
of  the  opposite  course  adopted  by  Mr.  Jefferson,  in  reference  to  some  iron  mines  discovered 
at  the  mouth  of  the  Cliickamauga,  in  Tennessee.  Tennessee  did  not  claim  these  mineral 
treasures  ;  but  the  Indians  themselves  expressed  a  wish  to  cede  these  mines  to  the  United 
States,  for  the  purpose  of  having  them  wrouglit.  Mr.  Jefferson  accordingly  negotiated  a 
treaty  of  cession  for  six  miles  square,  including  these  mines;  and  gave  the  following  reasons  to 
the  Senate,  as  his  inducement  :  "  As  such  an  establishment  would  occasion  a  considerable 
and  certain  demand  for  corn  and  other  provisions  and  necessaries,  it  seemed  probable  that 
it  would  immediately  draw  around  it  a  close  settlement  of  the  Cherokees  ;  would  encourage 
them  to  enter  on  a  regular  life  of  agriculture  ;  familiarize  them  with  the  practice  and  value 
of  the  arts ;  attach  them  to  property  ;  lead  them  of  necessity,  and  without  delay,  to  the  es- 
tablishment of  laios  and  Government,  and  thus  make  a  great  and  important  advance  toward 
assimilating  their  condition  with  ours." 

But  the  seizure  of  the  gold  mines,  violent  as  tliat  measure  is,  beyond  any  thing  that  was 
or  could  have  been  apprehended,  loses  its  importance,  when  contrasted  with  another  act 
of  great,  of  unexampled,  and  I  must  add  stupendous  injustice.  I  refer  to  the  law  which 
has  passed  the  Legislature  of  Georgia,  for  the  survey  and  disposal  of  the  lands  of  the  Che- 
rokees.    Let  it  be  remembered,  then, 

1.  That  tliere  is  a  boundary,  between  the  Cherokees  and  the  States  surrounding  them, 
fixed  by  numerous  treaties  and  by  law. 

2.  Let  it  be  remembered,  that  the  treaty  of  Holston,  which  was  negotiated  in  1791,  on 
instructions  previously  ratified  by  a  unanimous  Senate,  contains  this  simple  and  expressive 
pledge  :  "  The  United  States  solemnly  guaranty  to  the  Cherokee  nation  all  their  land  not 
hereby  ceded." 

3.  That  as  late  as  1817,  this  as  one  of  the  previous  treaties,  was  declared  to  be  "  in  full 
force,"  with  all  its  "  immunities  and  privileges;"  and  that  this  confirmation  is  contained  in 
a  treaty,  negotiated  by  the  present  chief  magistrate,  and  unanimously  ratified  by  the  Senate. 

4.  And  that  the  Intercourse  Act  makes  it  lilghly  penal,  to  survey  the  lands  belonging  or 
secured  to  any  Indian  tribe  by  treaty. 

And  now,  sir,  I  hold  in  my  hand  a  law  of  Georgia,  authorizing  the  survey  of  the  lands  thus 
solemnly  guarantied :  their  division  into  districts  and  sections  ,-  and  their  distribution  by  a  land 
lottery  ! 

There  is  aprovision  in  this  act  of  Georgia,  by  which,  if  the  President  of  the  United  States 
should  execute  his  sworn  duty,  in  enforcing  the  laws  of  the  United  States,  he  would  sub- 
ject himself  to  imprisonment  for  five  years  in  the  Georgia  Penitentiary  ;  that  beiny  the  pun- 
ishment denounced  by  this  State  law  on  any  person,  who  shall  obstruct  the  surveys,  which 
it  is  most  assuredly  the  duty  of  the  President  to  do. 

The  law  provides  for  the  survey  of  the  country  into  sections  and  districts.  The  sectional 
surveyors,  twelve  in  number,  are  to  proceed  with  as  little  delay  as  possible,  to  the  duties  as- 
signed them.  The  survey  of  the  districts  is  to  be  suspended  until  the  next  meeting  of  the 
General  Assembly,  and  until  further  enactments,  for  that  purpose.  The  number  of  district 
surveyors  is  one  huudrcd  and  ninety-six,  and  the  Governor  is  authorized  to  call  out  a  military 
force  to  protect  them  in  the  discharge  of  their  duties. 

The  only  mitigation  of  the  severity,  with  which  tiiis  bill  acts  on  tlie  Indians,  is  the  provi- 
sion contained  in  the  thirty-first  section.  By  this  section  it  is  directed,  that  "the  Indians 
and  their  descendants,  who  have  made  improvements  upon  the  territory,  are  to  be  protected 
in  the  possession  of  those  improvements  and  of  the  lots  of  land  upon  which  the  said  im- 
provements are  made,  until  otherwise  directed  by  the  General  Assembly,  or  until  they  are  vo- 
luntarily abandoned  by  the  Indian  occupants.  Indians  not  allowed  to  sell  their  right  of  oc- 
•upancy  to  any  person,  unless  it  be  to  the  Government  of  the  United  States,  or  ihe  govern- 
ment of  Georgia,  for  the  use  of  the  persons  drawing  such  improved  lots  in  the  lottery  ;  and 
no  grant  to  be  issued,  until  th«  Indians  shall  havejabandoned  the  lots  in  their  occupancy  ;  the 
fortunate  drawers  of  such  improveil  lots,  to  forfeit  their  draws,  should  they  by  threats,  or 
menaces,  or  violence,  remove  or  attempt  to  remove  any  Indian,  from  such  improved  lot." 

How  much  this  mitigation  is  worth  may  be  judged  of,  by  considering,  that  It  exists  only 
during  the  pleasure  of  the  General  Assembly,  and  that  tlie  evidence  of  the  Indian  occupants, 
and  of  all  those  able  to  support  his  title,  is  inadmissible  in  the  Georgia  Courts.  In  this  state 
of  things,  it  littla  matters,  whether  he  be  expelled  at  once,  or  his  estate  be  thrown  into  a 
land  lottery,  to  be  drav.n  as  a  prize,  and  a  "  fortunate  drawer"  planted  at  his  door,  or  dog- 
ging him,  wherever  he  goes,  till  b«  voluntarily  abandons  his  home. 

Especially  when  we  recollect,  that,  objectionable  as  this  law  is,  a  still  more  objectionable 
and  oppressive  measure  was  proposed  and  strenuously  advocated,  and  if  I  am  not  misin- 
formed, adopted,  in  tke  House  of  Representatives  of  Georgia.  1  derive  my  informatioH 
from  a  letter,  written  from  Mllledgeville,  and  published  in  the  Augusta  Chronicle.  I  know 
nothing  of  its  author,  but  that,  as  appears  on  the  face  of  the  letter,  he  is  a  friend  of  the 
present  administration. 


15 

Extract  of  a  letter  to  the  Editor  of  the  Augusta  Chronicle  from  a  correspondent  in  Milledgeville, 

dated  27th  Nov.   1830. 

"The  particular  question  now  and  for  several  days  past  before  the  House,  is  the  adoption 
of  Mr.  Haj'ne's  substitute  to  the  bill  reported  by  Judge  Schley,  from  the  Committee  on  tlie 
state  of  the  Republic.  This  contemplates,  as  you  are  aware,  the  taking  immediate  posses- 
sion of  the  Indian  lands,  and  forcibly  driving  tlie  Indians  therefrom.  How  such  a  bill  can  be 
the  subject  of  a  moment's  consideration  in  a  christian  land,  is  to  me  the  subject  of  the  deep- 
est astonishment,  and  yet  many  intelligent  men  believe  and  fear  it  may  be  successful.  For 
my  own  part,  I  will  not  believe  it  possible,  and  indeed  should  scarcely  credit  the  evidence 
of  my  own  senses,  if  such  were  the  fact.  God  forbid  such  a  fatal  consequence  !  and  I  will 
confidently  rely  on  his  over  ruling  goodness  and  protection  to  avert  it,  to  save  the  Indians, — 
nay  tenfold  more,  to  save  our  own  State  from  the  serious  evils  which  must  inevitably  follow 
it.  I  must  not  trust  my  feelings  farther  on  this  point  ;  they  are  perhaps  too  deeply  and  un- 
necessarily wounded.  We  will  at  least  hope  so.  One  thing  is  certain,  that  no  effort  is  or 
will  be  spared  to  prevent  the  adoption  of  the  measure  ;  and  I  am  proud  to  see  among  its 
opponents  many,  very  many  of  the  first  and  ablest  men  of  the  Assembly  of  both  parties. 
Indeed  it  is  by  no  means  a  party  matter,  &c. 

"  Numerous  as  are  the  advocates  of  this  measure,  the  array  of  talent  against  it  is  very 
powerful,  and  the  arguments  of  its  opponents  are  sound  and  incontrovertible.  To  say  no- 
thing of  humanit)',  the  want  of  necessity  or  expediency  ;  the  ingratitude  of  opposing  the 
President  and  his  Administration  which  have  long  been  and  still  are  making  every  possible 
effort  in  our  behalf^  the  folly  of  now  necessarily  arraying  them  against  us,  contrary  to  their 
will,  and  of  indirectly  giving  their  and  our  enemy,  Mr.  Clay,  still  furtlier  and  greater  power 
against  tliem  ;  the  imminent  danger  of  a  direct  and  violent  controversy  with  the  General  Go- 
vernment, all  of  which  are  directly  opposed  to  this  measure,  the  faith  and  honor  of  the  State 
Stand  openly  and  irrevocably  pledged  against  it.  But  for  this  pledge  given  by  our  Repre- 
sentatives, Mr  Wilde  and  others,  on  the  floor  of  Congress,  last  session,  against  the  exercise 
of  anj'  force  against  the  Indians,  any  effort  to  drive  them  forcibly  from  their  lands,  the  bill 
to  encourage  their  emigration  to  the  West  of  the  Mississippi  would  not  and  could  not  have 
been  passed." 

This  bill  with  some  amendments  passed  the  House  of  Keprcsent.itlves  of  Georgia,  76  to  55. 

I  read  this  to  show  that  it  is  not  merely  "  the  white  savages  of  the  North,"  nor  the  oppo- 
nents of  this  Administration,  who  condemn  the  course  pursued  by  Georgia. 

But  I  do  not  find  that  the  law  passed  is  essentially  better.  The  evil  is  only  delayed .  The 
lands  improved  by  the  Indians  are  not  exempted  from  the  lottery.  An  amendment  to  that 
effect  was  rejected,  by  a  vote  of  nearly  two  to  one  ;  and  after  the  lottery  is  drawn  tlie  un- 
happy occupant  is  only  to  keep  possession,  till  "  the  fortunate  drawer"  can  persuade  him 
logo. 

And  now,  sir,  is  there  a  member  of  this  House,  who  can  recollect,  that  the  United  States 
have  solemnly  guarantied  this  land  to  the  Indians  ?  That  we  guarantied  it  for  a  valuable  con- 
sideration, which  we  keep  ;  that  we  guarantied  it  voluntarily,  unanimously,  and  before  the 
compact  of  1802,  and  not  feel  that  the  guaranty  ought  to  be  I'edecmed  ;  that  tiie  pledged 
faith  of  the  country  ought  not  to  be  violated  ? 

I  again  appeal  to  gentlemen,  who,  without  approving  of  the  principles  of  tiiis  policy, 
gave  their  votes  for  the  bill  of  last  session,  qualified  as  it  was  by  the  Proviso,  wiiether  they 
would  have  lent  their  sanction  to  the  measure,  had  they  believed,  that,  within  a  twelve- 
month, a  law  would  be  passed  by  Georgia,  to  send  an  army  of  surveyors  into  the  territory 
of  the  Cherokees,  and  to  subject  any  person  who  should  presume  to  execute  your  laws,  to 
the  punishment  of  the  Penitentiary,  from  the  President  of  the  United  States  down  to  the 
lowest  officer  in  the  service  ' 

Why,  sir,  granting  that  all  these  treaties  made  by  the  United  States  are  unconstitutional 
and  not  binding  ;  granting  the  truly  atrocious  proposition,  that  we  can  break  tlie  treaty  and 
keep  the  consideration  ;  granting  that  Georgia  still  possesses  the  power,  which  if  slie  ever 
had  it,  by  adopting  the  constitution  she  gave  up  to  the  United  States,  and  that  things  now 
stand  as  they  stood  under  the  old  confederation,  all  this  would  not  mend  her  title  to  these 
lands.  Under  the  confederation,  she  admitted  the  right  of  the  Cherokees  to  treat  as  an  in- 
dependent nation.  She  treated  with  them  herself ;  the  treaty  of  Augusta  in  1783  stands 
in  her  statute  book  ;  and  in  that  treaty,  in  words  evidently  of  her  own  choosing ;  words  of 
the  English  Common  law  ;  she  accepts  a  cession  of  land  from  the  Cherokees  ;  and  in  so  do- 
ing recognizes  their  right  to  cede,  and  to  keep  what  they  do  not  cede.  I  will  read  to  the 
House  the  first  and  sixth  articles  of  that  treaty. 

"  Whereas  a  good  understanding  and  union  between  the  inhabitants  of  the  said  State  and 
the  Indians  aforesaid  are  reciprocally  necessary  and  convenient,  as  well  on  account  of  a 
friendly  intercourse  and  trade,  as  for  the  purposes  of  peace  and  humanity  ;  it  is,  therefore, 
agreed  and  covenanted — 

"  1st.  That  all  differences  between  the  said  parties,  heretofore  subsisting,  shall  cease  and 
be  forgotten. 


16 

6th.  And  lastly,  tliey,  the  said  headmen,  warriors,  and  chiefs,  whese  hands  and  seals  arc 
hereunto  affixed,  do  hereby,  for  themselves  and  for  the  nation  they  are  empowered  to  and 
do  effectually  represent,  recognize,  declare,  and  acknowledge,  that  all  the  lands,  woods, 
waters,  game,  Ijnng  and  being  in  the  State,  eastward  of  the  line  hereinbefore  particularly 
mentioned  and  described,  is,  are,  and  do  'belong,  and  of  right  appertain,  to  the  people  and 
government  of  the  State  of  Georgia  ;  and  they,  the  Indians  aforesaid,  as  well  for  themselves 
as  the  said  nation,  do  give  up,  release,  alien,  relinquish,  and  for  ever  quit  claim  to  the  sanie> 
or  any  part  thereof." 

Now,  what  \roukHiave  been  thouglU  of  tiie  transaction,  if,  the  day  after  signing  this  trea- 
t)'  and  accepting  this  cession,  Georgia  had  laid  claim  to  all  the  rest  of  the  land  ;  had  passed 
a  law  disposing  of  it ;  had  gone  into  the  country,  (supposing  her  to  have  been,  wiiat,  at  that 
period,  slie  most  assuredly  was  not,  strong  enough  for  that  purpose)  with  an  army  of  survey- 
ors; and  divided  it  out  for  distribution  by  a  land  lottery  ?  It  would  liave  been  thought  an 
unparalleled  bread)  of  good  faith. 

But  I  will  go  fartlier  tl-an  this:  Suppose  there  had  been  no  treaty  at  all — not  even  a  state 
of  peace — suppose  that  the  armies  of  Georgia  had  done,  what,  at  that  time,  it  was  wholly 
impossible  for  them  to  do — suppose  they  had  overrun  and  conquered  the  land,  even  then  the 
laws  of  nations  and  civilized  warfare  would  not  have  justified  this  measure.  Why,  Sir,  as  a 
war  measure,  and  in  the  hot  blood  of  victory,  such  a  thing  has  never,  in  modern  times,  been 
heard  of,  as  the  forcible  seizure  of  tlie  entire  domain  of  a  conquered  people,  and  a  partition 
of  it  into  sections,  tlie  unoccupied  part  of  wiiich  are  to  be  immediately  taken  possession  of, 
and  the  improved  parts  thrown  into  a  lottery  with  the  rest.  It  comes  up  to  the  precedent 
of  the  Norman  Conquest,  and  goes  beyond  the  partition  of  Poland.  I  doubt  if  a  single  Pol- 
ish proprietor  has  been  disturbed  in  tlie  possession  of  iiis  estate,  from  the  date  of  the  first 
partition  to  the  present  day.  Suppose  tliat  Russia,  and  Austria,  and  Prussia,  in  addition  to 
extending  their  laws  over  the  Poles,  had  enacted  a  code,  under  which  it  was  admitted,  that 
they  could  not  live,  had  cut  up  their  lands  into  districts  and  sections,  thrown  their  estates 
into  a  land  lottery,  granting  t')  the  proprietors  no  other  privilege  but  that  of  occupancy,  till 
they  could  be  induced  by  legal  duress  and  governmental  persecution  to  emigrate  to  the  de- 
serts of  Bucharia  !  What  language  would  have  furnished  adequate  terms  for  the  condemna- 
tion of  such  a  policy  ? 

Tlie  very  ground  on  which  Georgia  claims  the  right  to  pursue  this  course  is  the  strongest 
reason,  why  she  should  not  pursue  it.  Sir,  she  denies  that  they  are  an  independent  or  even 
separate  community.  Siie  says  they  are  her  citizens  or  subjects  ;  calls  them  "  her  peo- 
ple ;"  constitutes  them  an  integral  part  of  her  community  ;  and  then  passes  a  lavy  to  distri- 
bute tlieir  lands  by  a  lottery.  Does  not  this  show  the  injustice  of  the  measure  ?  Let  her 
pass  a  law  to,  dispose  by  lottery  of  the  property  of  the  people  of  Chatham  and  Effing- 
ham, of  Richmond  and  Columbia  ;  let  her  plant  a  "fortunate  drawer"  at  the  door  of  each 
man's  shop  and  house,  and  the  gate  of  his  jjlantation,  to  worry  him  olf  to  the  foot  of  the 
Rocky  Mountains. — No,  sir,  the  very  process  of  reasoning,  by  which  Georgia  would  with- 
draw the  Clierokees  from  our  protection,  can  serve  only  to  bring  them  under  her  own  ;  and 
is  itself  the  most  incontrovertible  of  all  arguments  against  this  oppressive  policy. 

But  we  live  under  a  Federal  Union,  designed  to  bring  all  the  States,  to  a  certain  de- 
gree, under  one  government,  and  possessing  tribunals  of  eminent  jurisdiction,  for  the  ad- 
iustment  of  controversies  which  are  placed  by  the  constitution  witliin  the  province  of  such 
tribunals. 

What  is  the  aspect  of  this  aff'air,  in  reference  to  this  Federal  Union,  and  the  authority  of 
its  tribunals  .' 

Let  it  then  first  be  borne  in  mind,  that  Georgia  in  1789  voluntarily  became  a  party  to  the 
Constitution,  "  which  is  the  supreme  law  of  the  land,  and  the  judges  in  every  State  shall 
be  bound  thereby,  any  thing  in  the  Constitution  or  laws  of  any  State,  to  the  contrary  not- 
withstanding ;"  and  that  it  is  also  a  provision  of  that  Constitution,  to  which  Georgia  is  a 
voluntary  ])arty,  that  "  the  judicial  power  of  the  United  States  shall  extend  to  all  cases, 
in  law  and  equity,  arising  under  the  (.onstitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority." 

Under  her  new  laws,  Georgia  has  proceeded  to  take  the  hfe  of  an  Indian.for  a  murder,  alleged 
to  have  been  committed  on  another  Indian,  within  the  Cherokee  boundary.  It  belongs,  in  no  de- 
gree, to  my  argument,  to  inquire  nito  tlie  guilt  of  this  pei'son.  1  have  seen  but  an  imperfect 
newspa])er  report  of  his  trial,  in  a  paper  friendly  to  the  policy  of  Georgia,which  1  mention  only 
as  authorizing  the  presumption, that  the  report  is  probably  not  strained  against  Georgia.  From 
that  report  it  appears,  that  Corn  Vassel,  ^,such  is  the  name  of  this  Indian  ;  it  is  also  the  first  In- 
dian name  subscribed  to  the  great  Hopewell  treaty)  was  found  guilty  of  murder,  chiefly  on  evi- 
dence, which  would  not  be  admissible  a,q;ainst  the  life  of  a  white  man,  (1  mean  Indian  evi- 
dence,) and  on  the  testimony  of  a  white  man,  whose  evidence  is  contradicted  by  the  Judge 
in  his  charge.  Now,  wliatever  may  be  said  against  the  admissibility  of  Indian  testimony  m 
cases  of  property,  I  am  clear  that  in  a  case  of  life  and  death,  as  good  evidence  ought  to 
be  required  to  convict  an  Indian  as  a  white  man.  The  jury  that  puts  an  Indian  to  death, 
needs,  I  think,  as  clear  a  warrant  of  credible  evidence  against  him,  as  the  jury  that  puts  a 


I  i 

white  man  to  death.  The  other  testimony,  to  which  I  have  alluded,  is  that  of  the  officer 
who  arrested  Tassel,  who  testified  that  at  first  he  talked  only  in  the  Indian  language,  but 
afterwards  spoke  English  intelligibly.  The  Judge,  who  sat  in  the  trial,  mentions  it  as  a  cir- 
cumstance to  be  regretted,  that  the  prisoner  at  the  bar  "  could  not  understand  him." 

But  though  I  am  inclined  to  think  there  was  not  evidence  to  establish  the  malice,  I  waive 
that  point  entirely,  and  do  not  pretend  that  Tassel  is  an  object  ef  sympathy.  I  go  upon  the 
assumption,  that  he  was  guilty,  though  I  do  not  think  that  proved  on  the  trial  as  reported. 
This  «« unfortunate  "  being,  (as  he  is  justly  called  by  Judge  Clayton,)  on  his  trial  before  a 
court  and  jury,  whose  language  he  did  not  understand,  pleaded  by  his  counsel  to  the  juris- 
<iiction  of  the  court.  The  ground  of  this  plea  appears  to  have  been,  that,  under  the 
treaties  between  the  United  States  and  the  Cherokees,  the  latter  were  independent 
of  the  laws  of  Georgia.  This  plea  was  reserved  for  the  consideration  of  all  the  Judges. 
They  overruled  it,  mainly  on  the  ground,  that  these  treaties  were  unconstitutional,  and 
could  not  bind  Georgia. 

Here  the  momentous  bearings  of  the  question  begin  to  appear.  Georgia  decides,  that 
numerous  Indian  treaties,  negotiated  during^  nearly  fifty  years,  sanctioned  by  every  branch 
of  the  Federal  Government,  under  every  administration,  and  by  Georgia  herself,  at  whose 
request  and  for  whose  benefit  many  of  them  were  entered  into,  are  all  wnconstitutional  and 
void.  Whence  the  Courts  of  Georgia  derived  the  power  to  decide  on  the  constitutionality 
of  treaties  and  laws  of  the  United  States,  I  do  not  know.  Her  Constitution  does  not  give  it 
to  her  ;  and  if  it  did,  it  would  be  a  void  grant,  for  Georgia  is  a  voluntary  party  to  the  Fed- 
eral Constitution  made  prior  to  her  own. 

The  right  of  deciding  in  cases  arising  under  the  Constitution,  laws,  and  treaties,  is  one 
of  the  rights  expressly  granted  by  the  People  of  Georgia  to  the  Federal  Judiciary.  The 
allegation,  that  the  Indian  Treatias  are  unconstitutional,  is  no  more  than  might  be  made  of 
any  other  treaties,  that  of  Louisiana  for  instance,  (which  was  at  first  supposed  by  Mr  Jeffer- 
son and  Mr  Madison  to  require  an  amendment  of  the  Constitution,  to  carry  it  into  effect,) 
and  if  the  Judges  of  a  State  can  entertain  the  question  of  the  constitutionality  of  the  Che- 
rokee treaties,  I  see  no  reason  why  they  cannot  do  it  in  the  case  of  any  others. 

It  will  easily  be  supposed,  that  the  unfortunate  being  whose  life  was  at  stake,  would  be 
disposed  by  his  counsel  to  maintain  the  validity  of  these  treaties;  and  he  accordingly  ap - 
plies  for  that  wi'it  of  error,  which,  under  the  Judiciary  act,  issues,  as  a  matter  of  course, 
when  duly  demanded.  This  was  a  case  arising  under  the  law  and  the  treaties,  the  validity 
of  which  was  denied  by  Georgia,  and  affirmed  on  behalf  of  the  Indian. 

The  citation  issues  in  the  usual  form,  the  form  in  which  it  has  been  respected  by  the 
Courts  of  the  most  powerful  and  enlightened  States  of  the  Union,  who  understand  and  love 
their  rights  as  well  as  Georgia.  This  writ  the  Legislature  of  Georgia  instructs  the  Governoi* 
and  all  other  officers  "  to  disregard,  and  with  it  every  mandate  and  process  that  has  been  oi!' 
shall  be  served  upon  him  or  them,  purporting  to  proceed  from  the  Chief  Justice  or  any  As- 
sociate Justice  of  the  Supreme  Court  of  the  United  States,  for  the  purpose  of  an'esting  the 
criminal  laws  of  this  State." 

In  other  words,  Georgia  repeals  for  herself  a  considerable  portion  of  the  twenty-fifth  sec- 
tion of  the  Judiciary  Act  of  Congress,  and  annuls,  in  all  criminal  cases,  the  second  section 
of  the  third  article  of  the  Constitution  of  the  United  States. 

Georgia,  on  the  principles  she  has  now  asserted,  has  only  to  make  it  penal  to  do  any  act 
or  thing  under  a  law  of  the  United  States,  and  she  thereby  acquires  exclusive  jurisdiction 
over  the  subject,  and  annuls  the  law. 

This  is  a  much  more  compendious  process  than  a  convention  of  the  people  of  a  State,  else- 
where proposed.  And  almost  at  the  moment  that  this  House  resolves,  by  a  majority  nearly 
unexampled,  that  it  will  not  repeal  the  twenty-fifth  section  of  the  Judiciary  Act,  Georgia  re- 
peals one  half  of  that  section,  and  of  the  clause  of  the  Constitution  on  which  it  is  founded. 

Where  is  this  to  stop .''  Is  it  to  stop  any  where  ?  What  laws  of  the  United  States  have  not , 
been  declared  unconstitutional  ?  What  laws  and  treaties  will  not  be  acted  on,  as  if  they  were? 
unconstitutional,  if  a  process  so  summary  is  permitted  to  obtain  ?  ^j, 

I  will  observe,  in  conclusion,  that,  till  the  validity  of  these  treaties  has  been  settled  by  tha^r 
tribunal  which  is  alone  competent  under  the  Constitution  to  entertain  the  question,  and  se'^g 
tied  in  favor  of  Georgia,  Tassel  could  not  be  put  to  death  by  any  lawful  warrant.     The  verj,^ 
Judge  who  tried  him  is  made,  in  the  report,  to  say,  that  he  "  belongs  to  another  nation.'^ 
And,  tUl  it  is  settled  by  the  competent  authority,  that  this  other  nation  is  subject  to  the  lawt  , 
of  Georgia,  the  death  of  Tassel  remains  illegal.     At  the  same  time  I  admit  there  may  be 
difficulties  in  the  case.     The  Constitution  is  clear,  but  it  is  not  certain  that  the  Judiciary 
Act  gives  full  force  and  effect  to  all  the  provisions  of  the  Constitution.     But  although  there 
may  be  no  remedy  for  the  wrong  done  to  the  being  whose  life  is  taken,  (if  he  has  lost  that 
life  at  a  bar  to  which  he  was  not  amenable, )  this  want  of  remedy  for  the  wrong  proves  no- 
thing in  favor  of  the  right  of  Georgia.    It  is  greatly  to  be  lamented  that  she  had  not  imitated 
th«  best  part  of  the  New  York  precedent,  and  granted  a  pardon  or  reprieve  to  Tassel.      As 
a  firsv.  case,  a  case  of  life  and  death,  of  an  individual  of  a  different  nation  and  language,  ap- 
pealing iQ  the  faith  of  the  Union,  and  asking  only  to  be  tried  by  that  tribunal  by  which  (,if 


the  treaties  are  Indeed  valid)  he  had  a  right  to  be  tried,  It  is  greatly  to  be  deplored  thsit  % 
little  time  could  not  have  been  granted. 

I  will  only  add  that  as  there  was  a  United  States'  force  in  the  country  when  Tassel  was  ar- 
rested ;  and  as  Congfress  had  just  enacted  in  a  law  which  the  President  signed,  that  the 
treaties  should  not  be  violated,  I  think  those  troops  would  have  been  as  well  employed,  in 
protecting  the  hfe  of  a  fellow-being,  pending  his  appeal  to  the  Courts  of  the  United  States, 
as  in  driving  the  Cherokces  from  their  own  mines. 

And  here  I  may  suitably  consider  the  plea,  that  Georgia  has  done  no  more  in  this  matter 
than  other  States,  and  particularly  New  York.  No  argument  is  more  apt  to  be  fallacious^ 
than  the  argument  from  analogy.  There  is  great  danger  of  mistaking  slight  and  merely  cir- 
cumstantial points  of  resemblance,  for  entire  parallelism.  I  will  examine  this  case  briefly 
but  (fairly.  I  will  admit  the  points  where  it  is  a  precedent  in  favor  of  Georgia  ;  and  I  will 
point  out  those;wh«re  it  is  not ;  premising,  that  if  the  legislation  of  Georgia  violates  law 
and  treaty,  it  by  no  means  follows  that  tlie  Government  of  the  United  States  may  withhold 
the  protection  which  it  owes,  and  which  is  demanded  by  those  who  are  the  victims  of  that 
legislation,  because  New  York  has  adopted  similar  acts  of  legislation. 

It  is  matter  of  surprise,  too,  if  the  legislation  of  New  York  affords  a  sanction  to  that  of  Geor- 
gia, that  it  was  not  insisted  on  sooner.  Three  great  negotiations  have  been  held  by  citizens 
of  Georgia,  since  the  New  York  law  of  1822,  with  the  Creeks  or  Cherokees,  and  this  pre- 
cedent was  never  pleaded,  as  far  as  1  can  find  in  the  record  of  the  negotiations. 

Now  let  us  compare  the  cases.  New  York,  in  1822,  passed  a  short  law  extending  her 
erjffu'na/ jurisdiction  over  the  dwindling  remnants  of  tribes  within  her  borders,  and  there  she 
has  stopped.  She  leaves  her  Indians  as  she  found  them.  She  makes  no  attempt,  by  severe 
penal  enactments  to  break  down  the  organization  of  their  tribes.  She  has  neither  claimed 
nor  surveyed  their  lands,  nor  seized  their  mines.  As  to  the  individual  condemned  by  her 
Courts,  Soo-non-gize,  her  Assembly  pardoned  him.  Her  law,  I  understand,  has  not  since 
been  acted  upon  ;  and  it  is  the  opinion  of  the  highest  legal  authorities  in  the  State,  that  it 
leaves  the  rights  and  condition  of  tlie  Indians^  where  it  found  them.  Hers  then  are  points  of 
great  and  vital  difference. 

The  New  York  law,  in  its  terms  confirred  to  crimes  and  offences,  was  evidently  intended,  in 
its  origin,  to  arm  the  State  with  power  to  protect  the  Indians,  against  the  evil  of  imaginary  and 
superstitious  crimes  ;  a  power,  as  the  event  shows,  designed  to  be  called  forth,  only  when 
such  a  peculiar  occasion  should  require  it.  The  Georgia  Code  is  one  of  civil  and  criminal 
jurisdiction,  the  last  of  a  series  of  measures,  having  for  its  great  and  avowed  object,  to  effect 
the  removal  of  the  Indians.  Hence,  while  New  York  stops  at  the  claim  of  criminal  jurisdic- 
tion, and  does  not,  in  point  of  fact,  enforce  that ;  Georgia  enacts  the  severest  laws  against  the 
entire  social  existence  of  the  tribe,  claims  their  lands,  seizes  their  mines,  and  substantially 
drives  them  from  her  borders.  If  New  York  had  gone  into  the  Seneca  Reser\'ation  with  a 
score  of  surveyors,  declaring  the  alternative  of  removal  to  the  West,  or  extinction,  and  draw- 
ing a  lottery  for  their  lands,  the  case  would  have  been  more  nearly  parallel.  Accordingly 
we  find,  in  the  last  plaee,  that  the  Senecas  never  invoked  our  protection,  because  no  prac- 
tical evil  was  done  or  threatened;  the  Cherokees  invoke  our  protection,  because  the  choice 
is  set  before  them,  of  subjection  to  State  laws,  under  which  they  are  told  they  cannot 
live,  and  removal  to  a  desert,  where  they  believe  they  must  die. 

There  is,  therefore,  the  greatest  difference  in  all  the  matters  of  fact,  which  give  a  char- 
acter to  the  two  cases.  In  point  of  equity  and  justice,  the  New  York  precedent  could  not 
of  course  alter  the  case;  as  one  wrong  affords  no  justification  of  another. 

I  will  here  also  answer  the  argument  drawn  from  the  example  of  the  colonies  and  of  the 
States,  before  the  Constitution.  The  argument  from  the  practice  of  the  colonies  is  of  two- 
fold aspect,  looking  to  the  question,  as  one  of  humanity  and  of  right. 

First,  as  to  humanity.     Grant  that  the  treatment  of  the  Indians,  by  the  colonies,  was  bar- 
barous and  cruel.     We  have  lately  been  taunted  with  the  fact,  that  when  taken  as  prison- 
rs  of  war  they  were  sometimes  sold  as  slaves  to  the  West  Indies;  and  our  recollection  has 
een  refreshed  with  the  circumstance,  that,   according  to  Cotton   Mather,   on  occasion  of 
'orming  an  Indian  fort,  the  huts  within  it  took  fire,  and  several  of  the  wretched  inmates 
'  »re  (as  this  author  with  detestable  quaintness  expresses  it)  "  broiled"  to  death.     These 
?e  the  facts  quoted  against  us.     They  were  the  incidents  of  a  war  of  mutual  extermina- 
lon,  between  the  Colonies  and  a  powerful  Savage  foe.     But  I  let  that  pass.     What  is  gain- 
d  by  citing  these  facts?     Suppose  they  prove  the  only  thing  they  seem  to  prove,  that  the 
early  settlers  of  New  England  were  a  blood-thirsty  race,  and  treated  the  Indians  barbarous- 
ly?   Is  any  thing  gained  for  Georgia   and  her  sister  States,  by  proving  that  fact?     Those, 
who  would  get  an  argument  to  support  their  policy,  out  of  the  fact,  that,  in  the  seventeenth 
century,  some  Indians  were  sold  to  the  West  Indies  as  slaves,  need  not  go  so  far  back.    The 
slave  trade,  till  very  lately,  was  carried  on  throughout  the  civilized  world.     All  nations  were 
stained  with   its  guilt.     The  States  of  New  England  brought  the  slaves  from  Africa;  the 
Southern  States  bought  them  into  bondage.     And  what  then?     Is  the  traffic  less  atroci- 
ous; or  is  it  inconsistent  for  any  one.  North  or  South,  at  the  present  day,  to  denounce  «nd 
reprobate  it? 


19 

Let  me  not,  however,  be  thought  to  admit  the  charge  of  barbarity  against  the  early  set- 
tlers of  New  England,  towards  the  Indians.  Some  incidents  occurred,  in  the  perilous  con- 
tJition  in  which  the  colonists,  in  the  early  periods  of  their  settlement  were  placed,  which  I 
surely  will  not  vindicate  5  but  their  conduct  towards  the  Indians  in  the  main  was  honorable 
and  kind.  The  charges  against  them,  from  whatever  quarter,  are  substantially  unjust. 
They  had  a  right  to  come  to  this  continent;  they  were  guided  hither  by  the  hand  of  the  same 
Providence,  that  had  planted  the  Indians  before  them.  There  was  room  for  both.  Our 
forefathers  had  a  right  to  a  part  of  the  soil,  to  be  obtained  by  honest  dealing  with  the  na- 
tives. I  have 'never  pretended,  that  the  Indian  had  an  exclusive  right  to  all  the  land  he 
could  see  from  the  top  of  the  mountain,  ©r  ove?-which  the  deer  may  fly  before  him  in  the 
chase.  But  what  follows  from  this  admission  ?  That  after  we  have  made  an  agreement  with 
an  Indian  tribe,  and  got  all  we  need,  and  guarantied  the  rest,  we  shall  not  be  bound  to  the 
&ith  of  our  compact  '     I  trust  not. 

How  then  is  the  question  of  right  affected  by  the  practice  of  the  colonies  ?  It  is  said 
they  legislated  over  the  Indians.  But  this  is  vague  and  general.  I  want  something  specific 
and  distinct.  Did  they,  after  making  a  long  series  of  treaties  with  the  Indian  tribes,  fixing 
boundaries,  accepting  cessions,  and  guarantying  unceded  lands,  did  they  turn  round,  de- 
clare those  treaties  null,  break  down  the  boundaries  and  seize  upon  the  land,  in  time  of  pro- 
found peace,  and  under  the  pretence  that  the  treaties  were  unconstitutional  ?  This  is  the 
kind  of  precedent  wanted;  not  one  resting  in  mere  political  metaphysics. 

But  grant  they  did  all  this,  (no  part  of  which  they  did)  and  grant  they  did  it,  as  indepen. 
dent  States,  before  the  Constitution  of  1789.  All  this  would  not  help  the  argument.  The 
States,  under  the  confederation,  were  clothed  with  many  attributes  of  sovereignty,  which 
they  gave  up  on  entering  the  Union.  They  coined  money,  enacted  navigation  laws.  Imposed 
tariffs  to  protect  manufactures.  The  right  to  treat  with  the  independent  tribes  of  In- 
dians was  not  one  of^the  rights  cf;ded  to  the  States,  although  conflicts  existed  between  the 
Congress  and  some  of  the  States  as  to  the  extent  of  their  power  in  this  respect.  But  all 
the  sovereign  powers  I  have  enumerated  were  given  up  by  the  States  in  adopting  the  Consti- 
tution. When  Georgia  adopted  the  Constitution,  the  treaty  of  Hopewell  was  in  existence^ 
containing  the  most  decisive  guaranties  of  the  rights  of  the  Cherokees.  Before  the  consti- 
tution, Georgia  claimed  the  right  of  treating  with  the  Indians  ;  but  afterwards  never.  She 
frequently  has  requested  the  United  States  to  treat  for  her  benefit,  and  the  United  States  have 
done  it.  And  now  the  argument  is,  that  Georgia  has  a  right  to  annul  all  these  treaties,  because 
in  former  times,  the  colonies  pr  the  States  extended  their  laws  over  the  Indians  ! 

But  it  Is  said  that  the  late  a(jmlnistration  pursued  the  same  policy  of  removing  the  Indians, 
and  the  friends  of  that  administration  are  charged  with  inconsistency  in  now  opposing  it. 
No  one  denies,  that  the  l^te  administration  earnestly  desired  the  removal  of  the  Indians.  It 
saw,  what  every  body  sees,  the  inconveniences  incident  to  the  residence  of  the  southwestern 
tribes  in  the  neighborhood  of  the  States,  so  resolutely  bent  on  acquiring  their  lands.  It  is 
well  known  that  the  project  of  colonizing  them  west  of  the  Mississippi,  was  submitted  by 
Mr  Monroe  to  Congress,  near  the  close  of  his  administration,  and  again  with  some  modifica- 
tions by  Mr  Adams  in  1828.  But  it  is  a  matter  of  equal  notoriety,  that  neither  the  last  ad- 
ministration, nor  that  wlilch  preceded  it,  co\itemplated  the  attainment  of  this  object  in  any 
other  way,  than  by  the  joint  and  voluntary  co-operation  of  the  Indians  themselves  and  the 
United  States.  The  idea  that  the  States  Qould  annul  the  treaties  was  never  countenanced 
by  the  bte  President  for  a  moment.  It  cannot  surely  be  forgotten  in  what  emphatic  lan- 
guage, on  a  very  trying  occasion,  Mr.  Adams  avowed  his  resolution  to  support  the  Indians  ia 
the  rights  secured  to  them  by  treaty  and  by  law. 

Georgia  had  passed  a  law  authorizing  the  survey  of  a  portion  of  Creek  lands,  ceded  by 
the  treaty  of  the  Indian  Springs,  which  the  Senate  of  the  United  States  had  annulled,  and 
not  ceded  by  that  of  Washington.  Mr.  Adams  immediately  oraered  the  arrest  and  prosecu- 
tion of  the  Surveyors.  Georgia  declared  a  determination  to  support  her  surveyors  by  mili- 
tary force  ;  and  the  President  submitted  the  subject  to  Congress.  In  the  Message  sent  for 
that  purpose,  he  used  this  language  :  It  ought  not,  however,  to  be  disguised,  that  the  act  of 
the  Legislature  of  Georgia,  under  the  construction  given  to  it  by  the  Governor  of  that  State 
and  the  surveys  made  or  attempted  by  his  authority  beyond  the  boundary  secured  by 
the  treaty  of  Washington  of  April  last  to  the  Creek  Indians,  are  in  direct  violation  of 
the  supreme  law  of  this  land,  set  forth  in  a  treaty,  which  has  received  all  the  sanctions 
provided  by  the  Constitution,  which  we  have  sworn  to  support  and  maintain.  In  the  pre- 
sent instance,  it  is  my  duty  to  say,  that  if  the  legislative  and  executive  authorities  of  the  State 
of  Georgia  should  persevere  in  acts  of  encroachment  upon  the  territories  secured  by  a  so- 
lemn treaty  to  the  Indians,  and  the  laws  of  the  Union  remain  unaltered,  a  superadded  obliga- 
tion, even  higher  than  that  othuman  authority,  will  compel  the  Executive  of  the  U.  States 
to  enforce  the  laws  and  fulfil  the  duties  of  the  nation,  by  all  the  force  committed  for  that  pur- 
pose to  his  charge." 

I  may  be  permitted  to  add,  that  this  message  and  other  important  documents  m  the  Geor- 
gia controversy,  were  committed  to  a  Select  Committee  ol  this  House,  of  which  I  had  the 
honor  to  be  the  Chairman,  from  which  »  Report  proceeded  supporting  in  all  points  the  pria- 


20 

ciples  laid  down  by  the  President  in  the  Message  I  have  just  cited.  It  is  obvioui,  therefore, 
that  there  is  no  foundation  for  the  charge  that  the  last  administration  was  friendly  to  the  poli- 
cy of  removing  the  Indians  as  now  pursued.  In  fact,  it  is  matter  of  gurprise,  that  a  charge  so 
notoriously  groundless  should  be  adventured.  Had  Mr.  Adams  done  what  is  now  pretend- 
ed ;  had  he  countenanced  Georgia,  Alabama,  and  Mississippi,  in  their  policy,  the  South 
would  never  have  been  consolidated,  as  it  was,  against  him  ;  and  I  much  doubt  if  tlie  Ciiair 
of  State  would  have  been  filled  as  it  now  is. 

Sir,  I  think  I  have  made  out  my  case.  I  have  shown  that  the  Cherokee  Indians  have  been 
invaded  in  the  territory  and  rights,  secured  to  them  by  treaty  and  by  law.  In  addition  to 
the  particulars  which  I  have  mentioned,  there  are  others  set  forth  in  their  memorial,  well 
deser^•ing  the  consideration  of  the  House.  Most  of  these,  for  want  of  tinve,  I  must  pass 
over  ;  but  on  two  of  them  1  will  dwell  for  a  monaent.  Georgia  has  contended  for  a 
boundary  line,  under  the  treaty  of  the  Indian  Springs  of  1825,  (and  in  contravention  of  that 
of  1826  at  Washington,  by  which  the  treaty  of  the  Indian  Springs  was  annulled)  which 
■would  take  a  million  of  acres  of  land  froni  the  Cherokees.  The  ground  of  this  claim  on 
the  part  of  Georgia  is,  tiiat  the  ancient  boundary  between  the  Creeks  and  the  Clierokees 
was  greatly  to  the  north  ot  the  recent  boundary  ;  and  that  the  Creeks  and  Cherokees,  by 
compact  between  themselves,  had  no  right  to  change  it.  If  this  were  true,  it  would  not  af- 
fect the  case,  because  the  treaty  of  the  Indian  Springs,  which  gave  Georgia  all  the  Creek 
lands,  being  fraudulent  in  itself,  could  never  have  given  any  rights,  and  was  solemnly 
annulled  by  the  Senate,  the  present  Secretary  of  War  voting  in  Javor  of  annulling  it..  Ne- 
vertheless, passing  by  the  treaty  of  Washington,  which  fixed  the  boundarj',  and  acting  under 
that  of  the  Indian  Springs,  wliich  the  Senate  declared  void,  the  President  has  undertaken 
to  settle  a  new  boundary,  equally  to  the  dissatisfaction  of  the  Clierokees  and  Georgia;  and 
has  actually  dispossessed  the  Cherokees,  by  a  simple  executive  order,  enforcing  a  treaty  de- 
clared by  the  Senate  to  be  fraudulent,  null,  and  void,  of  464,646  acres  of  land  ;  occupied 
as  they  allege  by  their  tribe  for  generations. 

I  migiit  also  speak  of  the  countenance  which  has  been  given  to  intruders,  in  establishing 
themselves  on  lands  vacated  by  the  emigrants  to  Arkansas,  by  which  serious  evils  and  con- 
stant vexations  are  occasioned  to  the  Cherokees  j  but  I  forbear,  for  want  of  tirae^  to  dwell 
on  the  subject. 

Nor  is  the  order  given  last  Summer,  to  change  the  mode  in  which  the  annuities  are 
paid,  less  vexatious.  It  has  been  called,  and  1  think  with  justice,  a  small  business. 
The  annuity  due  to  the  Cherokees  amounts,  I  believe,  to  but  6666  dollars.  It  is  by 
treaty  due  to  the  nation.  Since  the  Cherokees  took  our  advice,  and  estabhshed  a 
regular  Government,  it  has  been  paid  to  the  Treasurer  of  the  nation.  It  constitutes 
a  considerable  part  of  the  little  revenue  of  the  tribe.  The  President  has  seen  fit  to 
order  its  payment  to  the  Treasurer  to  be  discontinued,  and  to  l>e  made  hereafter  to  the 
Indians  individually,  it  amounts  to  about  forly-two  cents  for  each  of  the  population.  It 
must  of  course  be  paid  in  specie.  A  pait  of  the  tribe  live  a  hundred  or  two  miles  from  the 
agency.  Shall  it  be  sent  to  them  ?  Shall  they  travel  this  distance  to  receive  their  few  cents  .> 
What  is  the  object  of  this  change  ?  1  have  understood  that  it  has  been  stated  by  the  Sec- 
retary of  War,  in  a  letter  published  in  the  course  of  the  last  Summer,  that  complaints  had 
been  made,  that  some  of  the  Indians  are  defrauded  by  their  chiefs  of  their  share.  How- 
ever this  may  be  with  other  tribes,  to  which  the  same  cnange  extends,  and  of  this  I  know 
nothing,  I  believe  it  is  not  so  with  tlie  Clierokees.  I  have  seen  a  letter  from  Mr  Montgom- 
ery, the  Cherokee  agent,  dated  last  October,  in  which  he  declares  that  no  such  complaint 
has  ever  come  to  his  knowledge.  I  hppe  there  is  no  reason  for  the  suggestion  which  has 
been  made  on  very  good  authority,  that  this  change  in  the  mode  of  paying  the  annuities  has 
been  ordered,  to  deprive  the  Cherokee  Government  of  the  funds  necessary  to  enable  them 
to  carry  on  the  arduous  and  discouraging  contest  in  which  they  are  now  involved  with  the 
Executive  authorities  of  the  United  States  and  with  Georgia. 

I  have  confined  myself,  for  the  reasons  stated  in  the  outset,  almost  entirely  to  tlie  case  of 
the  Cherokees.  There  is  a  memorial  from  the  Creeks  on  our  tables,  from  which  it  would 
appear,  that  they  suffer  from  the  same  policy.  They  are  overrun  with  intrnders,  whom  the 
Government  of  the  United  States  does  not  remove  ;  and  the  legislation  of  Alabama  has 
been  eitend«d  over  them.  I  find  the  following  account  of  it  in  a  letter,  apparently 
by  a  member  of  the  Legislature  of  Alabama  t  "  Tuscaloosa,  (Al.)  9th  January.  The  Indian 
bill,  which  has  been  passed  in  the  House  of  Representatives,  provides  for  extending  over  the 
different  tribes  v.lthin  the  territorial  limits,  the  civil  and  criminal  laws  of  the  State,  prohibit- 
ing them  from  enacting  or  executing  any  laws  of  their  own— taxes  their  black  population 
between  the  ages  of  twelve  and  sixty,  with  a  poll  tax  of  fifty  cents.  The  Choctaw  and 
Chickasaw  nations  are,  however,  to  be  exempt  from  the  operations  of  this  act,  so  soon  as 
the  treaty  concluded  by  their  respective  nations  with  the  United  States  shall  have  been  ra- 
tified by  the  Senate.  This  was  a  favorite  amendment  of  mine,  and  it  was  all  I  could  do  to 
soften,  in  this  very  small  degree,  the  rigor  of  the  law."  * 

•  Since  tliia  Speech  was  delivered,  I  have  understood  that  bills  have  been  intruduced  in  botli  brancbea  of  the 
Legislature  of  Alabama,  to  leptal  Ui«  law  exttuding  the  jnrisdiciion  of  the  State  over  the  Indian*  ;  with  what 
•B«cna  X  an  uniufunne<u 


21 

with  the  Chickasaws  and  Choctaws,  treaties  have  been  concluded  under  the  law  of  last 
session,  and,  as  I  will  demonstrate,  in  direct  violation  of  its  provisions. 

Let  me  revert  a  moment  to  the  history  of  the  proviso  contained  in  that  law.  The  Pre- 
sident's message  took  the  ground,  that  the  Indians  could  not  be  protected  against  the  le- 
gislation of  the  States.  The  reports  of  the  Committees  on  Indian  Affairs,  in  the  two 
Houses,  took  the  same  ground.  The  bill  did  not  directly  grapple  with  that  point ;  but 
on  both  sides  of  the  House,  that  was  the  point  argued  ;  and  the  great  objection  to  the  bill 
was,  that  it  played  into  the  hands  of  that  policy.  The  House,  as  the  event  proved,  was 
nearly  in  equilibrio  .•  the  bill  passed  by  a  vote  of  102  to  97.  In  this  state  of  division  in  the 
House,  the  gentleman  from  Penssylvania  (Mr.  Eamsat,)  moved  an  amendment,  which  pre- 
Tailed.  It  provided  "  that  nothing  in  this  act  contained  should  be  construed,  as  authori- 
zing or  directing  the  violation  of  any  treaty  between  the  United  States  and  any  Indian 
tribe."     Without  this  proviso,  I  am  persuaded  the  bill  could  not  have  passed. 

By  this  clause,  the  House  solemnly  provided  that  the  treaties  were  constitutional,  and 
could  Hot  be  violated  ;  and  if,  as  it  would  seem,  the  President  thinks  them  unconstitution- 
al, I  do  not  understand  how  he  could  sign  the  bill.  He  thought  proper,  by  a  special  mes- 
sage, to  guard  the  House  against  even  construing  a  law  passed  at  the  last  session,  in  a  sense 
deemed  by  him  unconstitutional  ;  and,  in  appending  his  signature  to  it,  it  would  appear  that 
he  has  endorsed,  upon  the  official  roll  of  the, law  a  sort  of  quahfying  reference  to  that  message; 
an  entirely  novel,  singular,  and,  as  I  think,  unconstitutional  step.  In  this  case,  he  signs  a 
bill,  in  which  the  constitutionahty  of  the  treaties  is  expressly  recognized,  although  he 
deems  them  all  null  and  inoperative. 

With  this  act  in  bis  hand,  and  the  half  million  in  his  pocket,  the  Secretary  goes  down 
to  the  Chickasaws  and  Choctaws,  tfells  them  that  the  President  will  not  protect  them  from 
the  legislation  of  the  States,  and  "under  these  circumstances,"  negotiates  the  new  treaties. 
These  treaties  have  not  been  submitted,  (not  being  as  yet  ratified,)  to  the  House  of  Repre- 
sentatives. From  the  best  sources  of  infoimation  to  which  I  have  had  access,  I  have  been 
led  to  the  opinion,  that  the  tone  of  the  Secretary's  communications  with  the  Choctaws,  was 
of  the  most  urgent  and  imperative  character. 

No  one  denies  that  the  extension  of  State  laws  over  the  tribes  is,  of  itself,  a  violation  of 
all  the  treaties }  but  in  the  case  of  the  Choctaws,  there  were  peculiar  provisions  in  their 
treaties,  which  are  contravened  and  broken.  By  the  treaty  6t  Doak's  Stand,  negotiated  with 
that  tribe,  in  1820  by  the  present  Chief  Magistrate  and  the  worthy  gentleman  (.Gen.  Hinds) 
who  now  represents  the  State  of  Mississippi,  it  was  in  the  fourth  article,  stipulated  as  follows  : 

"The  boundaries  hereby  established  between  the  Choctaw  Indians  and  the  United  States 
on  this  side  of  the  Mississippi  river,  shall  remain  without  alteration,  until  the  period  at  which 
said  nation  shall  become  so  civilized  and  enlightened  as  to  be  made  citizens  of  the  United 
States,  and  Congress  shall  lay  off  a  limited  parcel  of  land  for  the  benefit  of  each  family  and 
individual  in  the  nation." 

Some  uneasiness  on  the  part  of  the  Choctaw  nation  appeare  to  have  been  produced  by 
this  stipulation;  and  it  was  accordingly,  in  the  treaty  with  the  "Choctaws,  negotiated  at  Wash- 
ington in  1825,  farther  provided,  "  that  the  fourth  article  of  the  treaty  aforesaid  shall  be  so 
modified,  as  that  the  Congress  of  the  United  States  shall  not  exercise  the  power  of  appor- 
tioning the  land,  for  the  benefit  of  each  family  or  individual  of  the  Choctaw  nation,  and  of 
bringing  them  under  the  laws  of  the  United  States,  but  with  the  content  of  the  Choctaw  na- 
tion .'" 

So  unequivocal  was  the  condition  of  the  Choctaws,  under  these  treaties,  that  the  State  of 
Mississippi  decided,  in  1826,  tliat  they  had  not  a  right  to  legislate  for  their  own  citizens, 
wandering  into  the  Choctaw  nation,  fugitives  from  the  justice  of  the  State. 

In  the  face  of  these  treaties,  in  the  face  of  the  proviso  of  the  law,  under  which  he  was 
acting,  refusing  expressly  to  authorize  their  violation,  the  Secretary  goes  to  the  Choctaws, 
tells  them  in  substance  that  the  old  treaties  will  be  regarded  by  the  Executive  of  the  United 
States  as  unconstitutional,  and  knowing  that  their  consent  to  remove  depends  upon  this  one 
fad  and  no  other,  he  assures  them  the  President  will  not  enforce  tiie  treaties,  and  under 
these  circumstances  induces  a  portion  of  them,  (how  large  a  portion  I  know  not,)  to  cede 
the  lands  of  the  nation.  To  effect  this  object,  there  is  great  reason  to  believe  that  very 
large  temptations  were  offered  to  the  individuals  possessing  influence  in  the  tribe. 

Now  I  say  the  law  of  the  last  session  was  conditional  ;  and  the  appropriation  contained  in 
it  was  conditionally  made. 

The  condition  was  that  the  Treaties  should  not  be  violated. 

It  is  known  to  every  gentleman  in  the  House,  that  the  sole  consideration,  which  induced 
the  Choctaws  to  agree  to  remove,  was  the  assurance  of  the  Secretary,  that  the  Government 
of  the  United  States  would  not  protect  them  from  the  violation  of  the  treaties. 

It  is  unnecessary  to  press  this  matter  much  farther.  I  have  stated  most  of  the  grounds, 
on  which  I  rest  the  propriety  and  expediency  of  adopting  my  motion. 

It  is  admitted  by  the  States,  that  they  consider  these  treaties  as  unconstitutioHal,  and  act 
accordingly. 


22 

The  President  acquiesces  in  thig  course  on  the  part  of  the  States,  although  it  is  his  sole 
duty  in  reference  to  this  matter  to  enforce  the  law,  of  which  these  treaties  are  a  part: 

Congress  last  winter  made  express  provision  against  their  violation. 

They  are  violated.  Let  us  then  either  make  provision  to  execute,  or  let  us  abrogate 
them  avowedly. 

It  is  due  to  consistency,  g^od  faith,  and  common  honesty. 

The  President  has,  with  his  annual  message,  sent  us  a  letter  from  the  Superintendent 
of  the  Bureau  of  Indian  Affairs,  in  which  that  officer  states,  that  the  law  of  1802,  "is  the 
principal  one  which  governs  all  our  relations  with  the  Indian  Tribes,"  and  recommends  its 
revisal  and  modification  to  suit  the  changes  produced  by  subsequent  treaties  and  other  cau- 
ses. The  same  message  is  accompanied  by  the  letter  from  the  Secretary  of  War,  to  which 
I  have  already  referred  ;  telling  us  that  the  provisions  of  thkt  law  are  unconstitutional,  and 
the  President  neglects  to  enforce  them  in  favor  of  those  tribes,  ov^r  which  the  States  have 
extended  their  laws. 

Let  us  then,  the  Congress  of  the  United  States,  if  we  think  this  law  is  constitutional,  make 
provision  to  execute  it ;  if  we  think  it  is  defective,  let  us  amend  it.  If  we  think  it  is  uncon- 
stitutional, let  us  repeal  it.  That  law,  by  which  all  our  Indian  relations  are  regulated,  ought 
not  surely  to  remain  in  its  present  state. 

If  the  treaties  are  constitutional,  let  us  enforce  them.  If  they  are  unconstitutional,  let  us 
abrogate  them  ;  let  us  repeal  the  proviso  of  the  last  Session  j  declare  them  null  and  void; 
and  make  what  compensation  we  can  to  the  deluded  beings,  who,  relying  upon  our  faith, 
have,  at  different  periods,  ceded  to  us  mighty  and  fertile  regions,  as  a  consideration  for  the 
guaranty  contained  in  these  compacts. 

Sir,  this  is  a  dreadful  affair.  Heaven  is  my  witness,  that  I  would  rather  palliate  than  mag- 
nify its  character  ;  but  I  can  think  of  nothing  so  nearly  parallel  to  it,  as  the  conduct  of  the 
Britisli  Government  towards  the  native  inhabitants  of  St.  Vincents.  This  is  a  precedent 
from  one  of  the  worst  periods  of  the  British  Government ;  that  of  the  Administration  which 
drove  America  into  revolution.  It  was  a  transaction  on  a  small  scale,  in  an  obscure  Island, 
and  toward  a  handful  of  men.  But  it  lefl  an  indelible  stigma  on  those  responsible  for  it  ;  a 
stigma  on  an  administration,  which  nothing  moderately  unjust  could  disgrace  ;  a  stigma, 
which  would  have  been  as  notorious  as  it  was  indelible,  but  for  the  overshadowing  enormity 
of  the  treatment  of  America,  which  succeeded.  If  we  proceed  in  this  path,  if  we  now  bring 
this  stain  on  our  annals,  if  we  suffer  this  cold  and  dark  eclipse  to  come  over  the  bright  sun 
of  our  national  honor,  I  see  not  how  it  can  ever  pass  off;  it  will  be  as  eternal  as  it  is  total. 

Sir,  I  will  not  believe  that  Georg-a  will  persevere.  She  will  not,  for  this  poor  corner, 
scarcely  visible  on  the  map  of  her  broad  and  fertile  domains,  permit  a  reproach  to  be  cast 
upon  her  and  the  whole  Union,  to  the  end  of  time. 

As  for  the  character  of  the  country  to  which  it  is  proposed  to  remove  the  Indians,  I  want 
only  light.  It  was  all  we  asked  last  session  ;  all  I  ask  now.  I  quoted  then  all  the  authori- 
ties, favorable  as  well  as  unfavorable,  with  which  1  was  acquainted.  The  friends  of  the  po- 
licy refused  us  the  only  means  of  getting  authentic  information  on  the  subject — a  commission 
of  respectable  citizens  pf  the  United  States  sent  out  for  the  purpose.  Since  the  subject  was 
discussed  last  session,  two  more  witnesses,  not  then  heard,  have  spoken;  Dr.  James,  who 
was  appointed  to  accompany  Col.  X^ong  on  his  tour  of  exploration  in  this  region,  has  thus 
expressed  himself: 

"  The  region  to  which  Mr  McCoy  proposes  to  remove  the  Indians,would,  such  is  its  naked 
and  inhospitable  character,  soon  reduce  civilized  men  who  should  be  confined  to  it,  to 
barbarism." 

In  1827,  before  this  question  was  controverted,  a  report  was  made  by  the  commissioners 
appointed  to  lay  out  a  road  from  the  western  boundary  of  Missouri  to  Santa  Fe  in  New 
Mexico.  These  commissioners  report,  that,  in  the  whole  line  of  their  march,  extending 
seven  hundred  miles,  if  all  the  wood  which  they  passed  were  collected  into  one  forest,  it 
would  not  exceed  a  belt  of  trees  three  miles-  in  width  ! 

But  a|I  this  does  not  change  the  question.  It  merely  suggests  the  possibility  of  an  altema- 
tive  of  evil.  If  all  the  land  were  as  fertile,  as  some  small  part  of  it  probably  is  ;  if  it  were 
as  safe  from  the  wild  tribes  of  the  desert,  as  it  is  notoriously  exposed  ;  if  wood  and  water 
were  as  abundant  as  they  are  confessedly  scarce  ;  if  it  were  the  paradise,  which  it  is  not ;  so 
much  the  worse  for  the  Indians,  the  miserable  victims  whom  we  are  going  to  delude  into  it. 
The  idea  that  they  cin  there  be  safe,  is  perfectly  chimerical  ;  and  every  argument  to  show 
that  the  land  is  good,  is  an  argument  of  demonstration  that  they  will  soon  be  driven  from  it. 
If  all  these  treaties  cannot  save  them,  nothing  can.  What  pledges  can  we  give  stronger 
than  we  have  given  ?  '      . 

It  is  partly  for  this  reason  that  I  urge  the  Heuse  to  settle  the  question  ;  and  the  more  plain- 
ly we  meet  it,  if  we  settle  it  against  the  Indians,  the  more  humane  will  be  our  conduct.  If 
we  intend  to  be  faithless  to  all  these  compacts,  let  our  want  of  faith  be  made  as  signal  and 
manifest  as  it  can  be. 

Here,  at  the  centre  of  the  Nation,  beneath  the  portals  of  the  Capitol,  let  us  solemnly 
auspicate  the  new  era  of  violated  promises  and  tarnished  faith.   Let  us  kindle  a  grand  coun« 


28 

cU-fire,  not  of  treaties  made  and  ratified,  but  of  treaties  annulled  and  broken.  Let  us  send 
to  our  archives  for  the  worthless  parchments,  and  burn  thera  in  the  face  of  day.  There 
will  be  some  yearnings  of  humanity,  as  we  perform  the  solemn  act.  They  were  negotiated 
for  valuable  considerations  ;  we  keep  the  consideration  and  break  the  bond.  One  gave 
peace  to  our  afflicted  frontier ;  another  protected  our  infant  settlements.  Many  were  made 
when  we  were  weak  ;  nearly  all  at  our  earnest  request.  Many  of  them  were  negotiated 
under  the  instructions  of  Washington,  of  Adams,  and  of  Jefferson — the  Fathers  of  our  liber- 
ty. They  are  gone,  and  will  not  witness  the  spectacle  ;  but  our  present  Giiief  Magistrate, 
as  he  lays  them,  one  by  one,  on  the  fire,  will  see  his  own  name  subscribed  to  a  goodly 
number  of  them. 

Sir,  they  ought  to  be  destroyed,  as  a  warning  to  the  Indians  to  make  no  more  compacts 
with  us.  The  President  tells  us  that  the  Choctaw  treaty  is  probably  the  kst  which  we  shall 
make  with  them.  This  is  well  ;  though,  if  they  remain  on  our  soil,  I  do  not  see  how  future: 
treaties  are  to  be  avoided.  But  I  trust  it  is  the  last  we  shall  make  with  them  ;  that  they 
will  place  themselves  beyond  the  reach  of  our  treaties  and  our  laws  ;  of  oui^  promises,  and, 
our  mode  of  keeping  them. 

There  is  one  sad  alleviation  of  the  fate  of  some  of  these  tribes.  When  the  possessions  of 
the  rural  population  of  Italy  were  parcelled  out  among  the  Roman  legions,  by  a  policy  too 
similar  to  that  wlilch  we  are  now  pursuing  towards  the  Indians,  it  was  the  pathetic  inquiry  ' 
of  a  poor  shepherd,  who  was  driven  from  his  native  soil,  his  cultivated  farm,  and  the  roof  of 
his  infancy, 

Impiua  hec  um  culta  noralia  milei  bab«bit, 
Barbarui  has  testes  f  En  quels  conievimus  agroi ! 

It  will  be  some  sad  alleviation  of  the  fate  of  these  dependent  allies,  whom  we  are  urging 
into  the  western  wilderness,  that  their  lands  and  their  houses,  their  fields  and  their  pastures, 
their  civilized,  improved,  and  Christian  homes,  will  pass  into  the  possession  of  their  civilized 
and  Christian  brethren  ;  who,  I  doubt  not,  will  do  their  best  to  mitigate  the  bitterness  of 
the  cup.  At  sorne  future  day,  should  they  escape  the  destruction  which  as  I  think  impends 
over  them  beyond  the  Mississippi,  some  of  their  children  will  perhaps  be  moved  by  the  de- 
sire to  undertake  a  pious  pilgrimage  to  the  seats  from  which  their  fathers  were  removed. 
The  children  of  the  exile  will  not,  I  know,  be  turned  unkindly  from  the  door  of  the  child  of 
the  "fortunate  drawer."  Here,  they  will  say,  are  the  roofs  beneath  which  our  parents  were 
bom,  and  for  which  our  white  brethren  cast  lots  ;  here  are  the  sods  beneath  which  the  ashes 
of  our  forefathers  are  laid  ;  and  there  are  the  ruins  of  the  Council  House  where  the  faith  of 
our  Great  Father  was  solemnly  pledged  to  protect  us  ! 

Sir,  it  is  for  this  Congress  to  say,  whether  such  is  the  futurity  we  will  entail  on  these  de- 
pendent tribes.  If  they  must  go,  let  it  not  be  to  any  spot  within  the  United  States.  They 
are  not  safe  :  they  cannot  bind  us,  they  cannot  trust  us.  We  shall  solemnly  promise,  but  we 
shall  break  our  word.  We  shall  sign  and  seal,  but  we  shall  not  perform.  Let  them  go  to 
Texas  ;  let  them  join  the  Camanches  ;  for  their  sakes  and  for  ours  ;  for  theirs  to  escape  the 
disasters  of  another  removal  ;  for  ours,  that  we  may  be  spared  its  shame. 

Now,  Sir,  I  have  done  my  duty.  I  have  intended  nothing  offensive  to  any  man  or  body  of 
nien.  1  have  aimed  only  to  speak  the  truth,  honestly  and  earnestly,  but  not  opprobriously. 
If,  in  the  heat  of  the  moment,  I  have  uttered  any  thing  which  goes  beyond  this  limit,  I  wish 
it  unsaid. 

I  am  not  without  hopes  that  Congress  will  yet  throw  its  broad  shield  over  these,  our  fel- 
low beings,  who  look  to  us  for  protection  :  being  perfectly  satisfied  that,  if  the  question 
could  be  presented  free  from  all  extraneous  considerations  to  the  decision  of  the  House,  it 
would  be  for  the  preservation  of  the  treaties. 

But  however  this  may  be,  I  am  confident  that  the  time  is  not  far  distant  when  the  people 
will  be  all  but  unanimous  in  this  matter.  I  believe  that  even  now,  could  it  be  freed  from 
all  delusive  coloring,  and  submitted  to  the  mighty  company  in  the  Union,  of  sober,  unpre- 
.judiced,  disinterested  men,  their  voice  would  reach  us,  like  a  rushing  storm  from  Heaven. 
Rather  than  have  this  Hall  made  the  theatre  of  such  a  disastrous  violation  of  the  National 
Faith,  they  would  speak  to  us  in  a  tone  which  would  shake  these  massy  columns  to  their 
base,  and  pile  this  canopy  in  heaps  on  our  heads. 


I 


OlflV.  OF  CAIIP.  LIBRABY.  LOS  AJIGELES 


UNIVERSITY  or  CALIFORNIA  LIBRARV 

Los  Angeles 
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